Unknown. Final rule
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/register/2006/08/28/06-7181·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
--- schema: federal-register doc_type: fedreg source_file: FR-2006-08-28.xml --- 71 166 Monday, August 28, 2006 Contents Agriculture Agriculture Department See Animal and Plant Health Inspection Service See Forest Service NOTICES Agency information collection activities; proposals, submissions, and approvals, 50882 E6-14212 Air Force Air Force Department NOTICES Privacy Act; systems of records, 50894-50898 06-7186 Animal Animal and Plant Health Inspection Service RULES Plant-related quarantine, foreign:
Tomatoes from Central American countries; importation, 50837-50843 E6-14219 NOTICES Meetings: Foreign Animal and Poultry Diseases Advisory Committee, 50882-50883 E6-14220 Army Army Department See Engineers Corps NOTICES Privacy Act; systems of records, 50898-50901 06-7184 06-7185 Centers Centers for Disease Control and Prevention NOTICES Agency information collection activities; proposals, submissions, and approvals, 50922-50923 E6-14231 Centers Centers for Medicare & Medicaid Services RULES Medicaid and State Children's Health Insurance Program:
Payment error measurement, 51050-51085 06-7133 Children Children and Families Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 06-7189 50923-50924 06-7190 Commerce Commerce Department See International Trade Administration See National Oceanic and Atmospheric Administration Community Community Development Financial Institutions Fund NOTICES Grants and cooperative agreements; availability, etc.: Community Development Financial Institutions Program, 50983-50993 E6-14253 Defense Defense Department See Air Force Department See Army Department See Engineers Corps RULES Federal Acquisition Regulation (FAR):
Contractor use of mandatory sources of supply or services; CFR correction, 50862 06-55525 NOTICES Meetings: Defense Business Board, 50894 06-7187 Employer Support of the Guard and Reserve Advisory Board, 50894 06-7183 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals, 50901-50902 E6-14246 Employment Employment and Training Administration NOTICES Adjustment assistance; applications, determinations, etc.: B.A.
Ballou & Co., Inc., et al., 50944-50945 E6-14221 Fiskars Brands, Inc., et al., 50945-50947 E6-14222 Energy Energy Department See Southeastern Power Administration NOTICES Meetings: Environmental Management Site-Specific Advisory Board— Oak Ridge Reservation, TN, 50902 E6-14218 Engineers Engineers Corps NOTICES Environmental statements; notice of intent: Port of Vancouver Columbia Gateway Project, WA, 50901 E6-14216 EPA Environmental Protection Agency PROPOSED RULES Air quality implementation plans; approval and promulgation; various States:
Nevada, 50875-50881 E6-14214 NOTICES Superfund; response and remedial actions, proposed settlements, etc.: Peter Cooper Landfill Site et al., NY, 50917-50918 06-7214 Rawleigh Building Site, IL, 50918 06-7191 Executive Executive Office of the President See Presidential Documents FAA Federal Aviation Administration NOTICES Aeronautical land-use assurance; waivers: Mount Pleasant Regional Airport, SC, 50966 06-7201 Raleigh County Memorial Airport, WV, 50966 06-7206 Environmental statements; availability, etc.:
Boston-Logan International Airport, MA, 50966-50967 06-7202 Meetings: RTCA, Inc., 50967 06-7203 FBI Federal Bureau of Investigation NOTICES Agency information collection activities; proposals, submissions, and approvals, 50943-50944 E6-14279 Federal Election Federal Election Commission NOTICES Special elections; filing dates: Ohio, 50918-50919 E6-14183 Texas, 50919-50920 E6-14182 Federal Emergency Federal Emergency Management Agency RULES Flood insurance; communities eligible for sale:
Various States, 50856-50862 06-7181 Federal Highway Federal Highway Administration NOTICES Grants and cooperative agreements; availability, etc.: Truck Parking Initiative, 50967-50969 E6-14254 Federal Motor Federal Motor Carrier Safety Administration RULES Motor vehicle safety standards; Operating authority requirements; enforcement, 50862-50867 E6-14248 NOTICES Motor carrier safety standards: Driver qualifications; vision requirement exemptions, 50970-50971 E6-14178 Motorcoach passengers; pre-trip safety information, 50971-50973 06-7182 Federal Railroad Federal Railroad Administration NOTICES Meetings:
Railroad Safety Advisory Committee, 50973 E6-14257 Federal Reserve Federal Reserve System NOTICES Banks and bank holding companies: Formations, acquisitions, and mergers, E6-14192 50920-50921 E6-14206 Fish Fish and Wildlife Service NOTICES Endangered and threatened species: Incidental take permits— Sarasota County, FL; Florida scrub-jay, 50941-50942 E6-14244 Endangered and threatened species permit applications, determinations, etc., 50940-50941 E6-14241 Environmental statements; availability, etc.:
Incidental take permits— Brevard County, FL; Florida scrub-jay and eastern indigo snake, 50942-50943 E6-14245 Scientific research permit applications, determinations, etc., 50893-50894 06-7196 Forest Forest Service NOTICES Environmental statements; notice of intent: Tongass National Forest, AK, 50883-50885 06-7198 Meetings: Resource Advisory Committees— Eastern Arizona, 50885 06-7194 GSA General Services Administration RULES Federal Acquisition Regulation (FAR): Contractor use of mandatory sources of supply or services;
CFR correction, 50862 06-55525 Health Health and Human Services Department See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Children and Families Administration See National Institutes of Health See Substance Abuse and Mental Health Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 50921 E6-14199 E6-14200 Meetings: American Health Information Community Consumer Empowerment Workgroup, 50922 06-7188 Homeland Homeland Security Department See Federal Emergency Management Agency Housing Housing and Urban Development Department NOTICES Grant and cooperative agreement awards;
Community Development Technical Assistance Programs, 50936-50940 E6-14186 E6-14187 Interior Interior Department See Fish and Wildlife Service See National Park Service See Surface Mining Reclamation and Enforcement Office NOTICES Reports and guidance documents; availability, etc.: U.S.-affiliated insular areas; power utilities and energy usage, 50940 06-7193 IRS Internal Revenue Service NOTICES Health Insurance Portability and Accountability Act of 1996; implementation: Expatriation; individuals losing United States citizenship; quarterly listing, 50993-50994 E6-14188 Meetings:
Art Advisory Panel, 50994 E6-14189 Taxpayer Advocacy Panels, 50994-50995 E6-14223 E6-14224 International International Trade Administration NOTICES Antidumping: Honey from— China, 50885-50886 E6-14233 Countervailing duties: Stainless steel sleet and strip in coils from— Korea, 50886-50891 E6-14230 Justice Justice Department See Federal Bureau of Investigation Labor Labor Department See Employment and Training Administration See Mine Safety and Health Administration Maritime Maritime Administration NOTICES Meetings:
Voluntary Intermodal Sealift Agreement/Joint Planning Advisory Group, 50973-50974 E6-14260 Mine Mine Safety and Health Administration NOTICES Safety standard petitions, 50947-50948 E6-14258 NASA National Aeronautics and Space Administration RULES Federal Acquisition Regulation (FAR): Contractor use of mandatory sources of supply or services; CFR correction, 50862 06-55525 National Highway National Highway Traffic Safety Administration RULES Motor vehicle safety standards: Event data recorders; minimum recording, data format, survivability, and information availability requirements, 50998-51048 06-7094 NOTICES Motor vehicle safety standards; exemption petitions, etc.:
Koenigsegg Automotive AB, 50974-50977 E6-14247 SS II of America, Inc., 50977-50980 E6-14261 YES! Sportscars, 50980-50982 E6-14252 NIH National Institutes of Health NOTICES Agency information collection activities; proposals, submissions, and approvals, 50924-50926 E6-14185 E6-14191 Inventions, Government-owned; availability for licensing, 50926-50928 E6-14184 Meetings: National Cancer Institute, 50928 06-7167 National Institute of Allergy and Infectious Diseases, 50930 06-7174 National Institute of Dental and Craniofacial Research, 50928-50929 06-7163 National Institute of Diabetes and Digestive and Kidney Diseases, 50929 06-7164 National Institute of Mental Health, 50929-50930 06-7166 National Institute of Neurological Disorders and Stroke, 50929 06-7165 National Institute on Alcohol Abuse and Alcoholism, 50930 06-7176 National Library of Medicine, 50930-50931 06-7171 06-7173 Scientific Review Center, 50931-50932 06-7168 06-7169 06-7170 06-7175 Patent licenses; non-exclusive, exclusive, or partially exclusive:
Wyatt Technology Corp., 50932-50933 E6-14190 NOAA National Oceanic and Atmospheric Administration NOTICES Meetings: North Pacific Fishery Management Council, 50891 E6-14227 Pacific Fishery Management Council, 50891-50892 E6-14226 South Atlantic Fishery Management Council, 50892-50893 E6-14217 Scientific research permit applications, determinations, etc., 50893-50894 06-7196 National Park National Park Service PROPOSED RULES Special regulations: Golden Gate National Recreation Area Dog Management Negotiated Rulemaking Advisory Committee Meetings, 50871-50872 E6-14205 NOTICES Meetings:
National Park System Advisory Board, 50943 E6-14204 Nuclear Nuclear Regulatory Commission NOTICES Environmental statements; availability, etc.: Tennessee Valley Authority, 50948-50949 E6-14202 Overseas Overseas Private Investment Corporation NOTICES Meetings; Sunshine Act, 50949-50950 06-7215 Personnel Personnel Management Office NOTICES Personnel management demonstration projects: Commerce Department alternative personnel management system, 50950-50952 06-7210 Presidential Presidential Documents EXECUTIVE ORDERS Government agencies and employees:
Health care programs; promoting quality and efficiency (EO 13410), 51087-51091 06-7220 ADMINISTRATIVE ORDERS Colombia; notice of intention to enter into free trade agreement (Notice of August 24, 2006), 51093 06-7221 SEC Securities and Exchange Commission NOTICES Self-regulatory organizations; proposed rule changes: Chicago Board Options Exchange, Inc., 50952-50954 E6-14193 E6-14195 International Securities Exchange, Inc., 50954-50955 E6-14208 NASDAQ Stock Market LLC, 50955-50959 E6-14194 National Association of Securities Dealers, Inc., 50959-50962 E6-14196 E6-14197 New York Stock Exchange LLC, 50963-50964 E6-14198 Southeastern Southeastern Power Administration NOTICES Power rates:
Kerr-Philpott System, 50902-50917 06-7192 State State Department NOTICES Culturally significant objects imported for exhibition: Art of Jan van der Heyden, 50964-50965 E6-14236 Brice Marden: A Retrospective of Paintings and Drawings, 50965 E6-14234 Glitter and Doom: German Portraits from the 1920s, 50965 E6-14239 Meetings: International Telecommunication Advisory Committee, 50965 E6-14232 U.S. National Commission for UNESCO, 50965-50966 E6-14237 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 50933-50935 E6-14242 E6-14243 Surface Surface Mining Reclamation and Enforcement Office RULES Permanent program and abandoned mine land reclamation plan submissions:
West Virginia, 50843-50849 E6-14228 Wyoming, 50849-50856 E6-14225 PROPOSED RULES Permanent program and abandoned mine land reclamation plan submissions: Pennsylvania, 50868-50871 E6-14229 Transportation Transportation Department See Federal Aviation Administration See Federal Highway Administration See Federal Motor Carrier Safety Administration See Federal Railroad Administration See Maritime Administration See National Highway Traffic Safety Administration Treasury Treasury Department See Community Development Financial Institutions Fund See Internal Revenue Service U.S.
Citizenship U.S. Citizenship and Immigration Services NOTICES Agency information collection activities; proposals, submissions, and approvals, 50935-50936 E6-14207 Veterans Veterans Affairs Department PROPOSED RULES Vocational rehabilitation and education: Vocational Rehabilitation and Employment Program— Initial evaluations, 50872-50875 E6-14079 NOTICES Meetings: Geriatrics and Gerontology Advisory Committee, 50995 06-7199 Separate Parts In This Issue Part II Transportation Department, National Highway Traffic Safety Administration, 50998-51048 06-7094 Part III Health and Human Services Department, Centers for Medicare & Medicaid Services, 51050-51085 06-7133 Part IV Executive Office of the President, Presidential Documents, 51087-51091, 51093 06-7220 06-7221 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 71 166 Monday, August 28, 2006 Rules and Regulations DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 [Docket No. APHIS-2006-0009] Importation of Tomatoes From Certain Central American Countries AGENCY:
Animal and Plant Health Inspection Service, USDA. ACTION: Final rule. SUMMARY: We are amending the regulations governing the importation of fruits and vegetables in order to allow pink and red tomatoes grown in approved registered production sites in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama to be imported into the United States. The conditions to which the importation of tomatoes will be subject, including trapping, pre-harvest inspection, and shipping procedures, are designed to prevent the introduction of quarantine pests into the United States.
This action will allow for the importation of pink and red tomatoes from those countries in Central America while continuing to provide protection against the introduction of quarantine pests into the United States. DATES: *Effective Date:* August 28, 2006. FOR FURTHER INFORMATION CONTACT: Ms. Donna L. West, Senior Import Specialist, Commodity Import Analysis and Operations, PPQ, APHIS, 4700 River Road, Unit 133, Riverdale, MD 20737-1228;
(301)734-8758. SUPPLEMENTARY INFORMATION: Background The regulations in “Subpart—Fruits and Vegetables” (7 CFR 319.56 though 319.56-8, referred to below as the regulations) prohibit or restrict the importation of fruits and vegetables into the United States from certain parts of the world to prevent the introduction and dissemination of plant pests that are new to or not widely distributed within the United States. Section 319.56-2dd of the regulations contains administrative instructions allowing the importation of tomatoes from various countries where the Mediterranean fruit fly (Medfly, *Ceratitis capitata* ) is present. In this document, we are amending that section by adding a new paragraph
(f)that sets forth administrative instructions concerning the importation of pink and red tomatoes from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama. On February 6, 2006, we published in the **Federal Register** (71 FR 6011-6016, Docket No. APHIS-2006-0009) a proposal 1 to amend the regulations to allow pink and red tomatoes grown in approved registered production sites in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama to be imported into the United States under certain conditions. 1 To view the proposed rule and the comments we received, go to *http://www.regulations.gov* , click on the “Advanced Search” tab, and select “Docket Search.” In the Docket ID field, enter APHIS-2006-0009, then click on “Submit.” Clicking on the Docket ID link in the search results page will produce a list of all documents in the docket. We solicited comments concerning our proposal for 60 days ending April 7, 2006. We received 15 comments by that date. They were from representatives of State and foreign agricultural departments, industry organizations, importers and exporters, producers, farmers, and individuals. Eight of these commenters supported the proposed rule. The others expressed reservations, which are discussed below. General Comments In our proposal, we explained that the proposed conditions to which tomatoes from Central America would be subject were very similar to current requirements for importing tomatoes from France, Morocco and Western Sahara, and Spain. We also stated that since the start of the tomato systems approach in France and Spain, the number of pest interceptions has been very low, with an approximate shipment infestation rate of 0.005 percent in Spain and 0.06 percent in France. With respect to those numbers, one commenter asked if the pest interception rates were for Medfly or for some other pest. The interceptions on tomatoes from France and Spain were leafminers, not Medfly. One commenter questioned why the pea leafminer ( *Liriomyza huidobrensis* ) was included in the list of quarantine pests of concern in the risk management document. The commenter said it would be unlikely for the pea leafminer to be introduced on tomato fruit, as that pest is commonly associated with only foliage or leaf litter, and asked if those plant parts will be allowed entry. The commenter is correct in that the pea leafminer feeds on foliage and not fruit. While foliage and leaf litter will not be permitted entry with tomato fruit, leafminer pupae may fall from tomato foliage onto the fruit during harvesting, packing, etc. These pupae are easy to detect and inspectors should readily detect any that may end up on fruit. Two commenters expressed concern that allowing more imports of tomatoes from foreign markets would result in negative economic impacts on small family farms in the United States. Two additional commenters stated that the Florida tomato industry has already experienced disasters such as freezes and hurricanes and that the entry of Medfly into Florida could devastate an already struggling industry. Our proposed rule was prepared in response to requests from several Central American countries that we allow the importation of pink and red tomatoes grown under a systems approach. Our scientific review of pests, similar programs, and other available documents led us to conclude that pest risk would be mitigated under the systems approach. The Plant Protection Act authorizes the Secretary to prohibit or restrict importations only when necessary to prevent the introduction of plant pests. One commenter stated that any imports of pink and red tomatoes from the Central American countries as proposed will increase the risk of the Medfly entering the United States and noted that the proposed rule claims only that the risk of Medfly introduction will be mitigated, not eliminated. This rule is designed to prevent the introduction and dissemination of quarantine pests into the United States. We recognize that there is no such thing as “zero risk” with respect to the importation of agricultural commodities, so we cannot claim that required phytosanitary measures will entirely eliminate all risk. With regard to pink and red tomatoes from Central America, we have determined that the requirements and mitigation measures set forth in this rule are effective and provide the appropriate level of protection to prevent the introduction and dissemination of the pests of concern in the United States. Further, pink and red tomatoes are not a preferred host of Medfly and Medfly has never been intercepted in commercial shipments of tomatoes grown under similar systems approaches in other countries. One commenter stated that we did not clearly explain how the risks presented by tomatoes from Central America were similar to the risks presented by tomatoes from other countries. The commenter asked that we explain this conclusion. In addition, the commenter stated that we did not provide an explanation as to how the systems approach itself was very similar to the current requirements for importing tomatoes from France, Morocco and Western Sahara, and Spain, nor did we provide any documentation that the enforcement regimes in Europe are similar or equivalent to those in Central America. With regard to risks presented by Central American tomatoes, we did not state that the risks associated with tomatoes from Central America and other countries were the same, merely that the systems approach we were proposing to add has been successful at mitigating the risk of Medfly introduction into the United States when applied to tomatoes produced in those other countries. With regard to the specific similarities of the systems approaches, tomatoes from Spain, France, and Morocco and Western Sahara are imported under conditions similar to those which will be applied to Central American tomatoes. The use of pest-exclusionary greenhouses, trapping/triggering programs, and inspection are similar in all of the programs. The requirements pertaining to the importation of pink and red tomatoes from Spain and France are contained in § 319.56-2dd, paragraphs
(a)and (b), and requirements for Morocco and Western Sahara are contained in paragraph (c), and may be compared to the provisions of § 319.56-2dd, paragraph
(f)in this rule. With regard to growing conditions, the proposed rule did not make any claims as to the similarity of the growing conditions and practices in France, Morocco and Western Sahara, and Spain, thus we have not prepared any documentation on that subject. The enforcement regimes of those countries with respect to their tomato export programs would equate to compliance with the relevant regulations in § 319.56-2dd, thus any similarities in their respective enforcement regimes would be in line with the similarities among the respective paragraphs in those regulations. One commenter stated that in a draft report titled, “Exotic Fruit Fly Strategic Plan, FY 2006-2010,” APHIS acknowledged that the fruit fly populations in Central America and in Mexico are a significant threat to U.S. agriculture due to the large numbers of people migrating north from fruit fly infested areas. The commenter stated that APHIS did not acknowledge this risk in the proposed rule. The proposed rule pertains to the importation of commercial shipments of tomatoes from the specified Central American countries. Therefore, the risk documentation prepared for the proposed rule, as well as the proposed rule itself, focus on the commercial fruit pathway and do not examine or seek to address the risks associated with individuals migrating from fruit fly infested areas in those countries to the United States. Alternatives Considered One commenter stated that APHIS should consider requiring the use of aerial spraying of spinosad in the areas where Medfly exists and/or a program releasing sterile fruit flies in the Medfly areas of these countries to reduce the risk of exporting Medfly on pink and red tomatoes to the United States. The measures suggested by the commenter would be undertaken by a country seeking to eradicate a fruit fly or to establish areas of pest freedom or low prevalence. They are not phytosanitary measures APHIS can require with respect to a particular imported commodity. One commenter requested that we limit distribution of pink and red tomatoes to States with crops that are not susceptible to Medfly or other quarantine pests from Central American countries. The commenter stated that at a minimum, Central American tomatoes should not be allowed to be distributed in the southern United States. Based on our experience with similar programs in France, Spain, and Morocco and Western Sahara, we believe that limiting distribution of tomatoes in the United States would be beyond what is necessary to ensure pest mitigation is achieved. As stated previously, the Plant Protection Act authorizes the Secretary to prohibit or restrict importations only when necessary to prevent the introduction of plant pests. One commenter stated that APHIS did not consider the use of ethylene gas on green tomatoes to ripen them. The commenter added that using ethylene gas will not increase the risk of Medfly introduction because it would involve importing green tomatoes only. Ethylene gas is not a phytosanitary measure; therefore, we would not require the use of it in our regulations. Further, green tomatoes from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama are currently enterable into the United States and importers are free to use ethylene gas to color tomatoes if they desire. One commenter stated that we did not consider irradiation as an alternative. As stated previously, we evaluated the risks associated with pink and red tomatoes from Central America and determined that the risks could be mitigated through the application of the measures described in the proposed rule and in this document. If we had determined that the designated measures were insufficient to provide an appropriate level of quarantine security, it is possible that we would have considered requiring the application of phytosanitary treatments such as irradiation. That was not necessary, however. Central American National Plant Protection Organizations One commenter asked if APHIS will provide oversight to ensure compliance with the program. APHIS will provide oversight of the programs by monitoring, conducting inspections, reviewing reports, and removing from the program any participating sites that are not in compliance with the mitigation measures. A second commenter stated that he requested specific information regarding the participating national plant protection organizations (NPPOs) from APHIS and was provided with contact information for each NPPO instead of the specific information. The commenter questioned our ability to trust the individual Central American NPPOs to provide sufficient oversight if we do not have specific information on their workforces and capacities. One commenter raised similar concerns stating that a systems approach is complicated and assumes that the necessary technical, inspection, and other resources are available to the exporting countries and are effective. The NPPO of each of the countries covered by the rule, like the NPPO of any country, is necessarily concerned with, among other things, the detection and management of quarantine pests, including fruit flies, and thus administers programs to prevent the introduction and spread of quarantine pests and promote appropriate measures for their control. Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama are all parties to the International Plant Protection Convention (IPPC), which is an international treaty to secure action to prevent the spread and introduction of pests of plants and plant products, and to promote appropriate measures for their control. We do not routinely request that our trading partners provide us with specific information concerning the number and experience level of the individual employees of their NPPOs, nor do our trading partners normally ask that information of APHIS. We have full confidence in the Central American NPPOs to oversee the prescribed mitigation measures. Further, it is in the best interest of the participating Central American countries to succeed with this program and doing so will require they meet our phytosanitary standards. One commenter asked that APHIS include provisions for conducting compliance audits during the active shipping and growing season to ensure full compliance with the systems approach. The commenter added that results of these compliance audits should be made available for review by all stakeholders in the United States. As described in the proposed rule and in this document, APHIS would be directly involved in the approval of production sites and determinations as to whether risk mitigation has been achieved following pest detections. In addition, each exporting country's NPPO will have to maintain an APHIS-approved quality control program to monitor or audit its fruit fly trapping program, and the trapping records will have to be maintained for APHIS review. We believe that these measures will be adequate to provide the compliance assurance sought by the commenter. Economic Analysis One commenter took issue with the statement in the economic analysis that, “[b]etween 1997 and 2002 there is not likely to have been substantial changes in the [domestic] industry.” The commenter said this statement is unsupportable and not relevant to the potential economic impacts on U.S. tomato growers in 2006. Our statement that “Between 1997 and 2002, there is not likely to have been substantial changes in the industry” followed three sentences describing fruit and vegetable wholesale trade firms ( *i.e.* , potential importers) and was intended to indicate that we believe the majority of those firms would still be small entities in 2002, as they were in 1997. The statement was not intended to apply to tomato growers. One commenter took issue with a statement in the economic analysis that the proposed rule would provide importers with alternative sources of tomatoes at a more advanced stage of ripeness. The commenter said that while this is technically true, it is meaningless because importers have not requested an alternative source for pink and red tomatoes and there is no indication that there are insufficient supplies of green, pink, or red tomatoes available in the United States. The availability of alternative sources of tomatoes at a more advanced stage of ripeness was cited as a potential result of the proposed action, not as an initiating factor behind it. One commenter took issue with the statement that the effects on small businesses would not be significant. The commenter noted that APHIS indicates it does not have information on the size distribution of domestic tomato producers and makes assumptions, for example, that the subject imports will “compete with all fresh tomatoes produced domestically.” The commenter claimed that this statement was inaccurate based solely on the cost of transportation from Central America to all parts of the United States. The commenter stated that APHIS also notes that the domestic price would fall by as much as $0.50 per cwt. The commenter stated that even if the price decline was “only” 1.4 percent, this does not render the decline insubstantial, and that the answer depends on the marketplace at the time the imports enter the United States because we are dealing with a perishable commodity, and with pink and red tomatoes we are dealing with a most perishable commodity. In such cases, the commenter stated, a small decline in price can and has had a profound negative effect on the price of tomatoes, and that if these tomatoes were to enter the United States during the winter months, then only the tomato producers in Florida would be harmed and the harm could be much greater than that suggested in the economic analysis. The economic analysis did not quantitatively account for the possibility that imports from Central America may displace imports from other countries. In fact, the economic analysis cautions that the impacts are likely overstated because the displacement of other tomato imports was not taken into account. Florida and other tomato-producing States do not produce enough field-grown tomatoes to meet domestic demand. Thus, domestic field production is supplemented by domestic greenhouse production and by imports. Over the past 6 years, fresh tomato imports have comprised approximately 34 percent of U.S. supply (production plus imports minus exports). Over one-third of annual imports arrive in the United States during the winter months, with the bulk of these imports coming from Mexico. We are unclear as to the commenter's intent in stating that transportation costs of imports of fresh tomatoes from Central America would prevent them from competing with all fresh tomatoes produced domestically and about pink and red tomatoes being a most perishable commodity. We presume the commenter believes that it will not be cost effective, nor feasible time-wise due to a more advanced stage of ripeness, for importers to transport tomatoes all over the United States. It would appear that the commenter is concerned that the bulk of Central American tomato imports will end up in the southern States because of their closer proximity to Central America. Most of the tomatoes produced in Florida are shipped to markets in the eastern United States, while Mexican imports serve mainly the western States. We believe that Central American imports will follow a similar pattern as Mexican imports. These marketing patterns would suggest that Florida producers may be less affected by fresh tomato imports from Central America than other domestic and foreign suppliers. Miscellaneous Change In our proposed provisions concerning the placement of Medfly traps in the buffer area surrounding each production site, we referred to Medfly traps with an approved protein bait. In this final rule, those provisions (§ 319.56-2dd(f)(2)(iii)(C)) refer to Medfly traps with an approved lure, as it will be parapheromone lures, rather than protein baits, that will be used outside of the greenhouses. Therefore, for the reasons given in the proposed rule and in this document, we are adopting the proposed rule as a final rule, without change. Effective Date This is a substantive rule that relieves restrictions and, pursuant to the provisions of 5 U.S.C. 553, may be made effective less than 30 days after publication in the **Federal Register** . This rule relieves restrictions on the importation of tomatoes from Central America while continuing to protect against the introduction of plant pests into the United States. Immediate implementation of this rule is necessary to provide relief to those persons who are adversely affected by restrictions we no longer find warranted. Making this rule effective immediately will allow interested producers, importers, shippers, and others to benefit immediately from the relief in restrictions. Therefore, the Administrator of the Animal and Plant Health Inspection Service has determined that this rule should be effective upon publication in the **Federal Register** . Executive Order 12866 and Regulatory Flexibility Act This rule has been reviewed under Executive Order 12866. The rule has been determined to be not significant for the purposes of Executive Order 12866 and, therefore, has not been reviewed by the Office of Management and Budget. In accordance with 5 U.S.C. 604, we have performed a final regulatory flexibility analysis, which is set out below, regarding the economic effects of this rule on small entities. Under the Plant Protection Act (7 U.S.C. 7701 *et seq.* ), the Secretary of Agriculture is authorized to regulate the importation of plants, plant products, and other articles to prevent the introduction of plant pests and noxious weeds. We are amending the regulations governing the importation of fruits and vegetables in order to allow pink and red tomatoes grown in approved registered production sites in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama to be imported into the United States. The conditions to which the importation of tomatoes will be subject, including trapping, pre-harvest inspection, and shipping procedures, are designed to prevent the introduction of quarantine pests into the United States. This action will allow for the importation of pink and red tomatoes from those countries in Central America while continuing to provide protection against the introduction of quarantine pests into the United States. Central American Production and Exports While agriculture is an important industry in the countries that will be affected by this rule, it does not account for the largest share of gross domestic product in any of the countries. Tomatoes do not appear to be major crops in those Central American countries. However, production and exports of tomatoes are following upward trends. Tomato production in Central America has been steadily increasing since the early 1960s. Over this period, production has increased almost 300 percent. In conjunction with this increase in production, exports of tomatoes from the region have also increased. Exports in 2003 were 42 times the exports in 1962. Between 1980 and 2003, exports increased by 45 percent. Nearly all of this trade has been intraregional. From 1962 to 2003, 96 percent of Central American tomato exports were to other countries within Central America. Thus, the vast majority of the tomatoes exported from any Central American country are destined for another country within the same region. U.S. Import Levels U.S. imports of Central American tomatoes have fluctuated greatly over the last 15 years. 2 In fact, 2003 was the end of a 10-year period during which the United States did not import tomatoes from any Central American country. U.S. imports of fresh tomatoes principally originate in Mexico, Canada, and the Netherlands, with Mexico being by far the largest supplier. 2 It is important to note here that this discussion refers to imports of all varieties of tomatoes. Disaggregated data were not available for this analysis. Although this rule will allow for more liberal importation of tomatoes from certain Central American countries, it is unlikely that the changes will lead to dramatic increases in U.S. import levels from that region. Effects on Small Entities This rule will affect domestic producers of tomatoes as well as importers that deal with these commodities. It is likely that the entities affected will be small according to Small Business Administration
(SBA)guidelines. As detailed below, information available to APHIS indicates that the effects on these small entities will not be significant. Two alternatives to this course of action are as follows: Maintaining the status quo with respect to the importation of tomatoes from these Central American countries ( *i.e.* , green tomatoes only) or allowing importation without establishing the risk mitigations in this rule. The first alternative would maintain current safeguards against the entry of quarantine pests. However, this option would also mean that those specified Central American countries as well as the United States would forgo the economic benefits expected to be afforded by the trade of Central American tomatoes. Allowing the importation of fresh tomatoes from certain Central American countries under less restrictive phytosanitary requirements could potentially lead to the introduction of pests not currently found in the United States. This option could result in significant damage and costs to domestic production and is not desirable for those reasons. Affected U.S. tomato producers are expected to be small based on the 2002 Census of Agriculture data and SBA guidelines for entities in two farm categories: Other Vegetable (except Potato) and Melon Farming (North American Industry Classification System [NAICS] code 111219) and Other Food Crops Grown Under Cover (NAICS code 111419). The SBA classifies producers in these farm categories as small entities if their total annual sales are $750,000 or less. APHIS does not have information on the size distribution of domestic tomato producers, but according to 2002 Census data, there were a total of 2,128,892 farms in the United States. 3 Of this number, approximately 97 percent had total annual sales of less than $500,000 in 2002, which is well below the SBA's small entity threshold for commodity farms. 4 This indicates that the majority of farms are considered small by SBA standards, and it is reasonable to assume that most of the 19,539 tomato farms that could be affected by the rule would also qualify as small. In the case of fruit and vegetable wholesalers (NAICS code 422480), 5 those entities with fewer than 100 employees are considered small by SBA standards. 6 In 1997, there were a total of 4,811 fruit and vegetable wholesale trade firms in the United States. 7 Of these firms, 4,610 or 95.8 percent employed fewer than 100 employees and were considered small by SBA standards. Between 1997 and 2002, there were not likely to have been substantial changes in the fruit and vegetable wholesale trade industry, thus we expect that a similar percentage of entities would have been small in 2002. Therefore, domestic producers and importers that may be affected by this rule are predominantly small entities. 3 This number represents the total number of farms in the United States, thus includes barley, buckwheat, corn, millet, oats, rice, soybean, and sugarcane farms. 4 Source: SBA and 2002 Census of Agriculture. 5 Note that this NAICS code relates to the 1997 Economic Census. The 2002 NAICS code for this group is 424480. 6 For NAICS 424480, SBA guidelines state that an entity with not more than 100 employees should be considered small unless that entity is a Government contractor. In this case, the size standard increases to 500 employees. However, in this instance, it is fair to assume that fruit and vegetable importers will not be under Government contract since it is against regulations for imports to be used in relevant Government programs ( *e.g.* , school lunch programs). 7 Source: SBA and 1997 Economic Census. Economic analysis of the expected increase in imports of tomatoes from Central America shows that the importation of this commodity will lead to negligible changes in domestic prices. APHIS estimates that an additional 13,092 metric tons of tomatoes may be imported from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama on a yearly basis. Using historical consumption data to estimate an elasticity of demand for tomatoes, an increase in imports of this size will result in a price decrease of $0.50 per hundredweight
(cwt)overall. Table 1.—U.S. Supply, Utilization, and Farm Weight Price of Fresh Tomatoes, 2000-2005 Year Supply Production Imports Total Utilization Exports Domestic Per capita use Season-average price Current dollars Constant 2000 dollars (Million pounds) (Pounds) ($/cwt) 2000 4,162.0 1,609.5 5,771.5 410.4 5,361.2 19.0 $30.70 $30.70 2001 4,061.1 1,815.6 5,876.7 398.2 5,478.5 19.2 30.00 29.30 2002 4,289.3 1,896.2 6,185.5 332.1 5,853.4 20.3 31.60 30.36 2003 3,909.8 2,070.7 5,980.5 314.1 5,666.4 19.5 36.70 34.62 2004 3,975.7 2,054.6 6,030.3 367.5 5,662.8 19.3 36.70 33.92 2005 f 4,086.0 2,000.0 6,086.0 360.0 5,726.0 19.4 Notes: — = not available, f = ERS forecast. Source: USDA/ERS, “Vegetables and Melons Yearbook,” *http://usda.mannlib.cornell.edu/data-sets/specialty/89011/.* For this analysis, it is assumed that imports of tomatoes from Central America will compete with all fresh tomatoes produced domestically. In 2004, U.S. fresh tomato production totaled 3,976 million pounds (table 1). APHIS estimates that an additional 13,092 metric tons (28.7 million pounds) of tomatoes will be imported from Central America. These import levels equate to only 0.7 percent of domestic production in 2004 and 1.4 percent of 2004 imports. Given the additional imports, it is possible that the domestic price will fall by as much as $0.50 per cwt. In 2004, the average producer price was $36.70 per cwt. Thus, the expected price decline will represent a 1.4 percent decline. However, this percentage is likely overstated because the new imports will be close substitutes for tomatoes from other countries. Imports from Central America will probably displace at least some of those imports from other countries. This likely substitution is not taken into account in the analysis. In order to put this price change into perspective, we consider it in terms of average revenue for small-entity tomato producers. Due to the lack of data on tomato farming, it is difficult to determine an accurate potential change in revenues for all producers. Averaging the total drop in revenues across all firms will overstate the loss to small producers while understating that for the larger ones. Data from the 2002 Census of Agriculture were used to estimate tomato production by small and large firms. This, in turn, was used to estimate revenues for these two categories. An average revenue per firm was then calculated. We conclude that any producer with fewer than 80 acres of tomatoes may be considered small, based on industry yields and revenues and the small-entity definition of not more than $750,000 in annual revenue. For small-entity producers with fewer than 100 acres (the reported category closest to 80 acres), a price change of $0.50 per cwt will lead to an estimated per firm decline in annual revenue of $293, or 1.6 percent. Given this small change and recalling that these effects are likely overstated, domestic producers are not likely to be significantly impacted by the rule. Although domestic producers may face slightly lower prices as a result of the potential increase in the tomato supply, these price changes are expected to be negligible. Domestic import firms, on the other hand, may actually benefit from more open trade with Central America resulting from increased opportunities that could be made available as a result of establishing new sources of tomatoes at a more advanced stage of ripeness. In both instances, changes of the magnitude presented here should not have large repercussions for either domestic producers or importers of tomatoes. This rule contains various recordkeeping requirements, which were described in our proposed rule, and which have been approved by the Office of Management and Budget (see “Paperwork Reduction Act” below). Executive Order 12988 This rule will allow pink and red tomatoes grown in approved registered production sites in Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama to be imported into the United States. State and local laws and regulations regarding tomatoes imported under this rule will be preempted while the fruit is in foreign commerce. Fresh fruits and vegetables are generally imported for immediate distribution and sale to the consuming public and will remain in foreign commerce until sold to the ultimate consumer. The question of when foreign commerce ceases in other cases must be addressed on a case-by-case basis. No retroactive effect will be given to this rule, and this rule will not require administrative proceedings before parties may file suit in court challenging this rule. National Environmental Policy Act An environmental assessment and finding of no significant impact have been prepared for this final rule. The environmental assessment provides a basis for the conclusion that the importation of tomatoes under the conditions specified in this rule will not have a significant impact on the quality of the human environment. Based on the finding of no significant impact, the Administrator of the Animal and Plant Health Inspection Service has determined that an environmental impact statement need not be prepared. The environmental assessment and finding of no significant impact were prepared in accordance with:
(1)The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321 *et seq.* ),
(2)regulations of the Council on Environmental Quality for implementing the procedural provisions of NEPA (40 CFR parts 1500-1508),
(3)USDA regulations implementing NEPA (7 CFR part 1b), and
(4)APHIS' NEPA Implementing Procedures (7 CFR part 372). The environmental assessment and finding of no significant impact may be viewed on the Regulations.gov Web site. 8 Copies of the environmental assessment and finding of no significant impact are also available for public inspection at USDA, room 1141, South Building, 14th Street and Independence Avenue SW., Washington, DC, between 8 a.m. and 4:30 p.m., Monday through Friday, except holidays. Persons wishing to inspect copies are requested to call ahead on
(202)690-2817 to facilitate entry into the reading room. In addition, copies may be obtained by writing to the individual listed under FOR FURTHER INFORMATION CONTACT . 8 Go to *http://www.regulations.gov* , click on the “Advanced Search” tab and select “Docket Search.” In the Docket ID field, enter APHIS-2006-0009, click on *Submit,* then click on the Docket ID link in the search results page. The environmental assessment and finding of no significant impact will appear in the resulting list of documents. Paperwork Reduction Act In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ), the information collection or recordkeeping requirements included in this rule have been approved by the Office of Management and Budget
(OMB)under OMB control number 0579-0286. E-Government Act Compliance The Animal and Plant Health Inspection Service is committed to compliance with the E-Government Act to promote the use of the Internet and other information technologies, to provide increased opportunities for citizen access to Government information and services, and for other purposes. For information pertinent to E-Government Act compliance related to this interim rule, please contact Mrs. Celeste Sickles, APHIS' Information Collection Coordinator, at
(301)734-7477. List of Subjects in 7 CFR Part 319 Coffee, Cotton, Fruits, Imports, Logs, Nursery stock, Plant diseases and pests, Quarantine, Reporting and recordkeeping requirements, Rice, Vegetables. Accordingly, we are amending 7 CFR part 319 as follows: PART 319—FOREIGN QUARANTINE NOTICES 1. The authority citation for part 319 continues to read as follows: Authority: 7 U.S.C. 450, 7701-7772, and 7781-7786; 21 U.S.C. 136 and 136a; 7 CFR 2.22, 2.80, and 371.3. 2. Section 319.56-2dd is amended by adding a new paragraph
(f)and revising the OMB citation at the end of the section to read as follows: § 319.56-2dd Administrative instructions: conditions governing the entry of tomatoes.
(f)*Tomatoes (fruit) (Lycopersicon esculentum) from certain countries in Central America.* Pink or red tomatoes may be imported into the United States from Costa Rica, El Salvador, Guatemala, Honduras, Nicaragua, and Panama only under the following conditions:
(1)From areas free of Mediterranean fruit fly:
(i)The tomatoes must be grown and packed in an area that has been determined by APHIS to be free of Mediterranean fruit fly (Medfly) in accordance with the procedures described in § 319.56-2(f) of this subpart.
(ii)A pre-harvest inspection of the production site must be conducted by the national plant protection organization
(NPPO)of the exporting country for pea leafminer, tomato fruit borer, and potato spindle tuber viroid. If any of these pests are found to be generally infesting the production site, the NPPO may not allow exports from that production site until the NPPO and APHIS have determined that risk mitigation has been achieved.
(iii)The tomatoes must be packed in insect-proof cartons or containers or covered with insect-proof mesh or plastic tarpaulin at the packinghouse for transit to the United States. These safeguards must remain intact until arrival in the United States.
(iv)The exporting country's NPPO is responsible for export certification, inspection, and issuance of phytosanitary certificates. Each shipment of tomatoes must be accompanied by a phytosanitary certificate issued by the NPPO and bearing the declaration, “These tomatoes were grown in an area recognized to be free of Medfly and the shipment has been inspected and found free of the pests listed in the requirements.”
(2)From areas where Medfly is considered to exist:
(i)The tomatoes must be grown in approved registered production sites. Initial approval of the production sites will be completed jointly by the exporting country's NPPO and APHIS. The exporting country's NPPO must visit and inspect the production sites monthly starting 2 months before harvest and continuing through until the end of the shipping season. APHIS may monitor the production sites at any time during this period.
(ii)Tomato production sites must consist of pest-exclusionary greenhouses, which must have self-closing double doors and have all other openings and vents covered with 1.6 (or less) mm screening.
(iii)Registered sites must contain traps for the detection of Medfly both within and around the production site as follows:
(A)Traps with an approved protein bait for Medfly must be placed inside the greenhouses at a density of four traps per hectare, with a minimum of two traps per greenhouse. Traps must be serviced on a weekly basis.
(B)If a single Medfly is detected inside a registered production site or in a consignment, the registered production site will lose its ability to export tomatoes to the United States until APHIS and the exporting country's NPPO mutually determine that risk mitigation is achieved.
(C)Medfly traps with an approved lure must be placed inside a buffer area 500 meters wide around the registered production site, at a density of 1 trap per 10 hectares and a minimum of 10 traps. These traps must be checked at least every 7 days. At least one of these traps must be near the greenhouse. Traps must be set for at least 2 months before export and trapping must continue to the end of the harvest.
(D)Capture of 0.7 or more Medflies per trap per week will delay or suspend the harvest, depending on whether harvest has begun, for consignments of tomatoes from that production site until APHIS and the exporting country's NPPO can agree that the pest risk has been mitigated.
(E)The greenhouse must be inspected prior to harvest for pea leafminer, tomato fruit borer, and potato spindle tuber viroid. If any of these pests, or other quarantine pests, are found to be generally infesting the greenhouse, exports from that production site will be halted until the exporting country's NPPO and APHIS determine that the pest risk has been mitigated.
(iv)The exporting country's NPPO must maintain records of trap placement, checking of traps, and any Medfly captures in addition to production site and packinghouse inspection records. The exporting country's NPPO must maintain an APHIS-approved quality control program to monitor or audit the trapping program. The trapping records must be maintained for APHIS's review.
(v)The tomatoes must be packed within 24 hours of harvest in a pest-exclusionary packinghouse. The tomatoes must be safeguarded by an insect-proof mesh screen or plastic tarpaulin while in transit to the packinghouse and while awaiting packing. The tomatoes must be packed in insect-proof cartons or containers, or covered with insect-proof mesh or plastic tarpaulin, for transit into the United States. These safeguards must remain intact until arrival in the United States or the consignment will be denied entry into the United States.
(vi)During the time the packinghouse is in use for exporting tomatoes to the United States, the packinghouse may only accept tomatoes from registered approved production sites.
(vii)The exporting country's NPPO is responsible for export certification, inspection, and issuance of phytosanitary certificates. Each shipment of tomatoes must be accompanied by a phytosanitary certificate issued by the NPPO and bearing the declaration, “These tomatoes were grown in an approved production site and the shipment has been inspected and found free of the pests listed in the requirements.” The shipping box must be labeled with the identity of the production site. (Approved by the Office of Management and Budget under control numbers 0579-0049, 0579-0131, and 0579-0286) Done in Washington, DC, this 22nd day of August 2006. Nick Gutierrez, Acting Administrator, Animal and Plant Health Inspection Service. [FR Doc. E6-14219 Filed 8-25-06; 8:45 am] BILLING CODE 3410-34-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 948 [WV-109-FOR] West Virginia Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement (OSM), Interior. ACTION: Final rule; approval of amendment. SUMMARY: We are approving an amendment to the West Virginia regulatory program (the West Virginia program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). West Virginia revised the Code of West Virginia (W. Va. Code) as amended by Senate Bill 461 concerning water rights and replacement, and revised the Code of State Regulations
(CSR)as amended by Committee Substitute for House Bill 4135 by adding a postmining land use of bio-oil cropland, and the criteria for approving bio-oil cropland as a postmining land use for mountaintop removal mining operations. DATES: *Effective Date:* August 28, 2006. FOR FURTHER INFORMATION CONTACT: Mr. Roger W. Calhoun, Director, Charleston Field Office, 1027 Virginia Street East, Charleston, West Virginia 25301. Telephone:
(304)347-7158, E-mail address: *chfo@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the West Virginia Program II. Submission of the Amendment III. OSM's Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the West Virginia Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its program includes, among other things, “* * * a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of the Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to the Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the West Virginia program on January 21, 1981. You can find background information on the West Virginia program, including the Secretary's findings, the disposition of comments, and conditions of approval of the West Virginia program in the January 21, 1981, **Federal Register** (46 FR 5915). You can also find later actions concerning West Virginia's program and program amendments at 30 CFR 948.10, 948.12, 948.13, 948.15, and 948.16. II. Submission of the Amendment By letter dated April 17, 2006 (Administrative Record Number WV-1462), the West Virginia Department of Environmental Protection (WVDEP) submitted an amendment to its permanent regulatory program in accordance with SMCRA (30 U.S.C. 1201 *et seq.* ). The amendment consists of State Committee Substitute for House Bill 4135, which amends CSR 38-2 by adding a postmining land use of bio-oil cropland and criteria for approving bio-oil cropland as an alternative postmining land use for mountaintop removal mining operations with variances from approximate original contour (AOC). The State also submitted State Senate Bill 461, which amends W. Va. Code section 22-3-24 relating to water rights and replacement. In its submittal of the amendment, the WVDEP stated that the codified time table for water replacement is identical to the one contained in the agency's policy dated August 1995 (Administrative Record Number WV-1425) regarding water rights and replacement that is referenced in the Thursday, March 2, 2006, **Federal Register** (71 FR 10764, 10784-85). The West Virginia Governor also signed Senate Bill 774, on April 4, 2006, which amends language concerning definitions, offices, and officers within the WVDEP. The amendments to Senate Bill 774 are non-substantive changes to the West Virginia program that do not require OSM approval. Therefore, the amendments to Senate Bill 774 can take effect as provided therein on June 9, 2006. We announced receipt of the proposed amendment in the June 2, 2006, **Federal Register** (71 FR 31996). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the adequacy of the proposed amendment (Administrative Record Number WV-1464). We did not hold a hearing or a meeting, because no one requested one. The public comment period closed on July 3, 2006. We received comments from two Federal agencies. III. OSM's Findings Following are the findings that we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment in full. Any revisions that we do not specifically discuss below concern non-substantive wording or editorial changes and are approved herein without discussion. Senate Bill 461 Senate Bill 461, which was passed by the Legislature on March 11, 2006, and signed into law by the Governor on April 4, 2006, amends Article 3 of the West Virginia Surface Coal Mining and Reclamation Act (WVSCMRA). Specifically, section 22-3-24 concerning water rights and replacement, waiver of replacement is amended at subsection
(c)by deleting the last sentence and by adding new subsections
(d)and (h). As amended, section 22-3-24 provides as follows: 22-3-24. Water rights and replacement; waiver of replacement.
(a)Nothing in this article affects in any way the rights of any person to enforce or protect, under applicable law, the person's interest in water resources affected by a surface mining operation.
(b)Any operator shall replace the water supply of an owner of interest in real property who obtains all or part of the owner's supply of water for domestic, agricultural, industrial or other legitimate use from an underground or surface source where the supply has been affected by contamination, diminution or interruption proximately caused by the surface mining operation, unless waived by the owner.
(c)There is a rebuttable presumption that a mining operation caused damage to an owner's underground water supply if the inspector determines the following:
(1)Contamination, diminution or damage to an owner's underground water supply exists; and
(2)a preblast survey was performed, consistent with the provisions of section thirteen-a of this article, on the owner's property, including the underground water supply, that indicated that contamination, diminution or damage to the underground water supply did not exist prior to the mining conducted at the mining operation.
(d)The operator conducting the mining operation shall:
(1)Provide an emergency drinking water supply within twenty-four hours;
(2)provide temporary water supply within seventy-two hours;
(3)within thirty days begin activities to establish a permanent water supply or submit a proposal to the secretary outlining the measures and timetables to be utilized in establishing a permanent supply. The total time for providing a permanent water supply may not exceed two years. If the operator demonstrates that providing a permanent replacement water supply can not be completed within two years, the secretary may extend the time frame on [a] case-by-case basis; and
(4)pay all reasonable costs incurred by the owner in securing a water supply.
(e)An owner aggrieved under the provisions of subsections (b),
(c)or
(d)of this section may seek relief in court or pursuant to the provisions of section five, article three-a of this chapter.
(f)The director shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement the requirements of this section.
(g)The provisions of subsection
(c)of this section shall not apply to the following:
(1)Underground coal mining operations;
(2)the surface operations and surface impacts incident to an underground coal mine; and
(3)the extraction of minerals by underground mining methods or the surface impacts of the underground mining methods.
(h)Notwithstanding the denial of the operator of responsibility for the damage of the owners [owner's] water supply or the status of any appeal on determination of liability for the damage to the owners [owner's] water supply, the operator may not discontinue providing the required water service until authorized by the division. Notwithstanding the provisions of subsection
(g)of this section, on and after the effective date of the amendment and reenactment of this section during the regular legislative session of two thousand six, the provisions of this section shall apply to all mining operations for water replacement claims resulting from mining operations regardless of when the claim arose. The sentence that was deleted from Subsection
(c)provided as follows: The operator conducting the mining operation shall:
(1)Provide an emergency drinking water supply within twenty-four hours;
(2)provide a temporary water supply within seventy-two hours;
(3)provide a permanent water supply within thirty days; and
(4)pay all reasonable costs incurred by the owner in securing a water supply. The deleted information quoted above was added, with modifications, as new Subsection 22-3-24(d). The language at new Subsection
(d)is substantively identical to the language deleted from Subsection
(c)and can be approved with the following understanding. At Subsection (d), item
(3)no longer requires the operator to provide a permanent water supply within thirty days. As revised, the operator is required to begin, within 30 days, activities to establish a permanent water supply or submit a proposal to the WVDEP Secretary outlining the measures and timetables to be utilized in establishing a permanent water supply. The total time for providing a permanent water supply may not exceed two years. The new language also provides that if the operator demonstrates that providing a permanent replacement water supply can not be completed within two years, the WVDEP Secretary may extend the time frame on a case-by-case basis. Our evaluation of the new language at Subsection (d), item
(3)follows. SMCRA at section 717 addresses water rights and replacement. Section 717(b) provides as follows:
(b)The operator of a surface coal mine shall replace the water supply of an owner of interest in real property who obtains all or part of his supply of water for domestic, agricultural, industrial, or other legitimate use from an underground or surface source where such supply has been affected by contamination, diminution, or interruption proximately resulting from such surface coal mine operation. The implementing Federal regulations at 30 CFR 816.41(h) is substantively identical to section 717(b). Section 720(a)(2) of SMCRA concerning subsidence and replacement of a water supply provides that underground coal mining operations conducted after October 24, 1992, shall:
(2)Promptly replace any drinking, domestic, or residential water supply from a well or spring in existence prior to the application for a surface coal mining and reclamation permit, which has been affected by contamination, diminution, or interruption resulting from underground coal mining operations. Nothing in this section shall be construed to prohibit or interrupt underground coal mining operations. The implementing Federal regulation at 30 CFR 817.41(j) essentially repeat the requirement provided at section 720(a)(2) of SMCRA. The SMCRA provisions and implementing Federal regulations described above require prompt replacement of water supplies, but they do not provide specific timetables for replacement. Moreover, neither SMCRA section 720(a)(2) nor the implementing Federal regulations at 30 CFR 817.41(j) define the term “prompt replacement” of a water supply. The Federal provision at 30 CFR 817.41(j), concerning a drinking, domestic or residential water supply affected by underground mining activities conducted after October 24, 1992, was promulgated on March 31, 1995 (60 FR 16722, 16749). In the preamble to that promulgation, OSM provided the following guidance concerning the meaning of the term “prompt replacement” that was intended to assist regulatory authorities in deciding if water supplies have been “promptly” replaced: OSM believes that prompt replacement should typically provide: Emergency replacement, temporary replacement, and permanent replacement of a water supply. Upon notification that a user's water supply was adversely impacted by mining, the permittee should reasonably provide drinking water to the user within 48 hours of such notification. Within two weeks of notification, the permittee should have the user hooked up to a temporary water supply. The temporary water supply should be connected to the existing plumbing, if any, and allow the user to conduct all normal domestic usage such as drinking, cooking, bathing, and washing. Within two years of notification, the permittee should connect the user to a satisfactory permanent water supply. (60 FR 16727) We believe that the State's proposed provision, which provides that if the operator demonstrates that providing a permanent replacement water supply cannot be accomplished within two years, the WVDEP Secretary may extend the time frame on a case-by-case basis, is not unreasonable and provides the WVDEP with appropriate flexibility while continuing to require a replacement permanent water supply. Overall, the State's provision at W. Va. Code 22-3-24(d) provides for emergency, temporary, and permanent replacement of a water supply that is no less effective than the Federal requirements. We believe that the proposed flexibility is necessary because in some instances public water lines have to be extended by public service districts and in some rare instances these extensions may take longer than two years to complete. During this period, operators cannot provide the affected water supply owner a permanent water supply hook up. This may also be true in situations where private replacement wells are to be drilled, but drilling is delayed due to very unusual circumstances. In either situation, during the period of delay, the operator will have to post a performance bond in the amount of the estimated cost to replace the water supply, as provided by 30 CFR 817.121(c)(5). The State counterpart to this Federal provision at CSR 38-2-16.2.c.4 was previously approved by OSM on May 1, 2002 (67 FR 21918-21919). It essentially requires that an escrow bond be posted whenever water supply replacement takes longer than 90 days to complete. Therefore, we find that W. Va. Code 22-3-24(d), item (3), is not inconsistent with SMCRA section 720(a)(2), which requires prompt replacement of water supplies, or the Federal regulations at 30 CFR 817.41(j) concerning the prompt replacement of water supply, and it can be approved. New subsection
(e)is being amended by including a reference to subsection (d). As amended, it states that a water supply owner aggrieved under the provisions of subsection
(d)may seek relief in court or under the State claims procedures. We find that the proposed revision is in accordance with SMCRA section 720(a)(2) and consistent with the Federal water replacement requirements at 30 CFR 817.41(j) and it can be approved. The State proposes to redesignate Subsection
(f)as subsection (g). Newly designated Subsection
(g)limits the applicability of Subsection (c). While there have been no substantive changes in this new subsection, it is important to note that this provision was initially approved by OSM on November 12, 1999, with the understanding that it would not relieve an operator of replacing a water supply which is adversely affected by an underground mining operation. This same understanding continues in force (64 FR 61513). Under new Subsection (h), an operator cannot discontinue providing water service to an owner of an adversely affected water supply until authorized by the WVDEP. In addition, with the enactment of Subsection (h), the water supply replacement provisions of W.Va. Code 22-3-24 apply to all surface and underground mining operations regardless of when the claim arose. We find that the proposed statutory provisions are not inconsistent with the Federal requirements at SMCRA sections 717(b) and 720(a)(2) and they can be approved. House Bill 4135 Committee Substitute for House Bill 4135, which was passed by the Legislature on March 11, 2006, and signed into law by the Governor on April 4, 2006, amends CSR 38-2 by authorizing the WVDEP to promulgate legislative rules. The CSR 38-2-7.2 concerns premining and postmining land use categories. The CSR 38-2-7.2.e, concerning cropland land use category is amended by adding new paragraph 38-2-7.2.e.1 concerning “Bio-oil Cropland.” As amended, Subsection 7.2.e provides as follows: 7.2.e. Cropland. Land used primarily for the production of cultivated and close-growing crops for harvest alone or in association with sod crops. Land used for facilities in support of farming operations are included; 7.2.e.1. Bio-oil Cropland. Agricultural production of renewable energy crops through long-term intensive cultivation of close-growing commercial biological oil species (such as soybeans, rapeseed or canola) for harvest and ultimate production of bio-fuels as an alternative to petroleum based fuels and other valuable products; The Federal regulations at 30 CFR 701.5, under the definition of “Land use” define “Cropland,” at paragraph
(a)as land used for the production of adapted crops for harvest, alone or in rotation with grasses and legumes, that include row crops, small grain crops, hay crops, nursery crops, orchard crops, and other similar crops. While the Federal regulations do not specifically define “bio-oil” cropland, we find that as proposed, the State's definition of “Bio-oil Cropland” is consistent with and no less effective than the Federal definition of “Cropland” at 30 CFR 701.5 and it can be approved. New Subsection 7.8, concerning bio-oil cropland, is added to provide as follows: 7.8. Bio-oil Crop Land. 7.8.1. Criteria for Approving Bio-oil Cropland Postmining Land Use. 7.8.1.a. An alternative postmining land use for bio-oil cropland may be approved by the secretary after consultation with the landowner and or land management agency having jurisdiction over state or federal lands: Provided, That [that] the following conditions have been met. 7.8.1.a.1. There is a reasonable likelihood for the achievement of bio-oil crop production (such as soybeans, rapeseed or canola) as witnessed by a contract between the landowner and a commercially viable individual or entity, binding the parties to the production of bio-oil crops for a measurement period of at least two years after the competition [completion] of all restoration activity within the permitted boundaries; 7.8.1.a.2. The bio-oil crop reclamation plan is reviewed and approved by an agronomist employed by the West Virginia Department of Agriculture. The applicants shall pay for any review under this section; 7.8.1.a.3. The use does not present any actual or probable hazard to the public health or safety or threat of water diminution or pollution; 7.8.1.a.4. Bio-oil crop production is not: 7.8.1.a.4.A. Impractical or unreasonable; 7.8.1.a.4.B. Inconsistent with applicable land use policies or plans; 7.8.1.a.4.C. Going to involve unreasonable delays in implementation; or 7.8.1.a.4.D. In violation of any applicable law. 7.8.2. Soil reconstruction specifications for bio-oil crop postmining land use shall be established by the W. Va. Department of Agriculture in consultation with the U. S. Natural Resources Conservation Service and based upon the standards of the National Cooperative Soil Survey and shall include, at a minimum, physical and chemical characteristics of reconstructed soils and soil descriptions containing soil-horizon depths, soil densities, soil pH, and other specifications such that constructed soils will have the capability of achieving levels of yield equal to, or higher that [than], those required for the production of commercial seed oils species (such as soybeans, rapeseed or canola) and meets the requirement of 14.3 of this rule. 7.8.3. Bond Release. 7.8.3.a. Phase I bond release shall not be approved until W. Va. Department of Agriculture certifies and the secretary finds that the soil meets the criteria established in this rule and has been placed in accordance with this rule. The applicants shall pay for any review under this section. 7.8.3.b. The secretary may authorize in consultation with the W. Va. Department of Agriculture, the Phase III bond release only after the applicant affirmatively demonstrates, and the secretary finds, that the reclaimed land can support bio-oil production; and there is a binding contract for production which meets the requirements of subdivision 7.8.1.a of this rule; and the requirements of paragraph 9.3.f.2 of this rule are met. The applicant shall pay for any review under this section. 7.8.3.c. Once final bond release is authorized, the permittee's responsibility for implementing the bio-oil cropland reclamation plan shall cease. As noted above, W.Va. Code 22-3-24, CSR 38-2-7.8.1.a, 7.8.1.a.1 and 7.8.2 contain typographical errors. We have inserted words in brackets which are intended to correct those errors. The most substantive change concerns Subsection 7.8.1.a.1. Instead of competition, we believe that the State intends that the measurement period for bio-oil cropland last for at least two years after “completion” of all restoration activities within the permitted boundaries. We encourage the State to correct both typographical errors at its earliest convenience. It is important to note that, as required by Subsection 7.8.2, constructed bio-oil cropland soils will have to achieve levels of yield equal to, or higher than those required for the production of commercial seed oil species (such as soybeans, rapeseed, or canola ) and meet the requirements of Subsection 14.3. Subsection 14.3 contains the topsoil requirements for all surface coal mining operations. In addition to meeting the reconstruction requirements of Subsection 7.8 as established by the West Virginia Department of Agriculture and the U.S. Natural Resources Conservation Service, all bio-oil cropland soils will have to meet the requirements of Subsection 14.3. The cross reference to subsection 14.3 ensures that Subsection 7.8.2 is no less effective than the Federal topsoil requirements at 30 CFR 816.22. In addition, we should note that that bond release requirements at subsection 7.8.3.b provide that the WVDEP secretary may authorize final bond release, in consultation with the West Virginia Department of Agriculture, only after the applicant demonstrates and the secretary finds that
(1)The reclaimed land can support bio-oil crop production,
(2)there is a binding contract for that production, and
(3)the requirements of Subsection 9.3.f.2 are met. Subsection 9.3.f.2 contains the reclamation success standards for areas to be used for cropland. Consistent with the Federal requirements at 30 CFR 816.116(c)(2), the State rules provide that, for areas to be used for cropland, the success of crop production from the mined area must be equal to or greater than that of the approved standard for the crop being grown over the last two consecutive growing seasons of the five growing season liability period, which commences at the date of the initial planting of the crop being grown. In addition to requiring that the area attain certain soil standards, the proposed rule requires a demonstration of actual bio-oil crop production. Because the proposed State rule references other requirements used to demonstrate attainment of revegetation success for cropland, we find that Subsection 7.8.3.b is no less effective than the Federal requirements at 30 CFR 816.116 and 800.40(c) and it can be approved. The new provisions at CSR 38-2-7.8 provide supplemental criteria for the approval of bio-oil cropland as an alternative postmining land use for mountaintop removal mining operations with variances from AOC. The existing State provisions at W. Va. Code 22-3-13(c) and CSR 38-2-14.10 continue to provide the requirements for approval and the environmental performance standards for a mountaintop removal mining operation with a variance from AOC. We note that the proposed provisions do not specifically provide that other applicable provisions of the approved State surface mining program continue to apply. However, there is nothing in proposed Subsection 7.8 that supersedes or negates compliance with other applicable provisions such as the permit approval requirements at W. Va. Code 22-3-22(c), the general provisions concerning premining and postmining land use at CSR 38-2-7.1, the alternative postmining land use requirements at CSR 38-2-7.3, the bond release requirements at CSR 38-2-12.2 or the topsoil requirements at CSR 38-2-14.3, as mentioned above. It is our understanding that the other applicable provisions of the West Virginia program will continue to apply to the extent they are consistent with promoting bio-oil cropland as an approved postmining land use for mountaintop removal mining operations with AOC variances. Therefore, we find that the State's proposed bio-oil cropland provisions at CSR 38-2-7.8, as described above, are consistent with and no less stringent than SMCRA section 515(c) concerning mountaintop removal mining operations with AOC variances, and no less effective than the Federal regulations governing mountaintop removal mining activities at 30 CFR 785.14 and they can be approved. Our approval of CSR 38-2-7.8 is based upon the understandings discussed above. CSR 38-2-7.3 concerning criteria for approving alternative postmining use of land is amended by adding new paragraph 38-2-7.3.d to provide as follows: 7.3.d. A change in postmining land use to bio-oil cropland constitutes an equal or better use of the affected land, as compared with pre-mining use for purposes of W. Va. Code 22-3-13(c) in the determination of variances of approximate original contour for mountaintop removal operations subject to Subsection 38-2-7.8 of this rule; SMCRA at section 515(c)(2) provides for a variance from the requirement to restore land to AOC for mountaintop removal mining operations in which an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill (except for areas required to be retained in place as a barrier to slides and erosion under section 515(c)(4)(A)) will be removed. SMCRA at section 515(c)(3) provides that in cases where an industrial, commercial, agricultural, residential, or public facility (including recreational facilities) use is proposed for the postmining use of the affected land, the regulatory authority may grant a permit for a surface mountaintop removal mining operation where, at section 515(c)(3)(A), after consultation with the appropriate land use planning agencies, if any, the proposed postmining land use is deemed to constitute an equal or better economic or public use of the affected land, as compared with premining use. Proposed Subsection 7.3.d differs from section 515(c)(3)(A) of SMCRA and 30 CFR 785.14(c)(1)(i) in one important respect. Unlike its Federal counterparts, the State's proposed provision does not specifically require consultation with appropriate land use planning agencies, if any, on a permit-by-permit basis in order to determine whether bio-oil cropland is an equal or better use of the affected land, as compared with the premining use. Rather, CSR 38-2-7.3.d categorically states that a postmining land use of bio-oil cropland does constitute an equal or better use of the affected land, as compared with the premining use for purposes of W. Va. Code 22-3-13(c), which is the State's counterpart to SMCRA section 515(c) concerning AOC variance for mountaintop removal mining operations. Nevertheless, we believe that the West Virginia program at Subsection 7.3.d is not rendered less stringent than section 515(c)(3)(A) of SMCRA, or less effective than 30 CFR 785.14(c)(1)(i), for the following reasons. Land use planning is a function of State law and land use planning agencies operate solely under a grant of authority under West Virginia law (W. Va. Code Chapter 8A, Articles 1 through 12). If the State Legislature elects to withdraw that grant of authority, it has the right to do so and is thus not inconsistent with SMCRA, which only requires consultation with “appropriate land use planning agencies, if any.” In this case, the West Virginia Legislature has effectively determined that there are no appropriate land use planning agencies with which consultation is needed on the question as to whether bio-fuels production is an equal or better land use. Finally, we note that all the other requirements of the approved West Virginia program, including the alternative postmining land use approval criteria at CSR 38-2-7.3.a, will have to be met prior to the approval of an AOC variance for a mountaintop removal mining operation with a postmining land use of bio-oil cropland. Bio-oil cropland is an agricultural postmining land use that is one of the five approved postmining land uses provided for by W. Va. Code 22-3-13(c) for mountaintop removal mining operations with AOC variances; and, W. Va. Code 22-3-13(c)(3)(C) requires a determination that the proposed use would be compatible with adjacent land uses, and existing State and local land use plans and programs. Therefore, based upon the discussion above, we find that the proposed provision at CSR 38-2-7.3.d does not render the West Virginia program less stringent than SMCRA section 515(c)(3)(A) nor less effective than the Federal regulations at 30 CFR 785.14(c)(1)(i) and it can be approved. In approving these requirements, we should note that it is our understanding that rapeseed and canola are not currently produced in West Virginia. Only soybeans are grown in commercial quantities within the State. According to the 2005 Agricultural Statistics Bulletin, West Virginia produced 828,000 bushels of soybeans in 2004. Mason and Jefferson Counties produced about 86 percent of the State's soybeans. Other unidentified counties produced 118,000 bushels of soybeans (USDA National Agricultural Statistics Service, 2005 West Virginia Bulletin No. 36 (Administrative Record Number WV-1465)). Currently, there are no coal mining activities in Mason or Jefferson Counties. Furthermore, it is believed that no soybeans were produced in counties where mountaintop removal mining activities occurred during 2005. The proposed rules are intended to encourage production of bio-crops in areas within the State where mountaintop removal mining activities occur in order to ease our Nation's dependency on foreign sources of oil. During 2005, 70 percent of the State's surface coal production was produced by mountaintop mining operations, which include both steep slope and mountaintop removal mining operations. There were approximately 70 mountaintop mining operations in West Virginia in 2005. As mentioned above, mountaintop removal mining activities remove an entire coal seam or seams running through the upper fraction of a mountain, ridge, or hill. Steep slope mining activities do not remove the entire coal seam or seams and occur on slopes that are more than 20 degrees. It must be noted that the State's steep slope mining requirements at CSR 38-2-14.12.a.1, like the Federal requirements at SMCRA section 515(e)(2), do not provide for an approved postmining land use of agriculture, and therefore, steep slope mining operations cannot be approved with a postmining land use of bio-oil cropland. This postmining land use will be limited to only mountaintop removal mining operations with AOC variances. As of April 2006, there were 65 biodiesel production plants in the United States (Administrative Record Number WV-1470). The total annual production of these plants is 395 million gallons. There are also plans to construct 50 new plants and to expand eight existing plants, according to the National Biodiesel Board. The anticipated annual production capacity for these plants will be 714 million gallons. The primary feedstock of most of these plants is soybean oil. Currently, there are no production plants in the State that convert rapeseed, canola, or soybeans to bio-fuel. The closest plants are in Pennsylvania and Virginia. In April 2006, the West Virginia Department of Agriculture started a pilot project of selling soy-based bio-diesel. The biodiesel is sold at a farmers market in Berkeley County and purchased from a plant near Richmond, Virginia. Biodiesel is available for $3.89 per gallon, but the price is expected to decline as biodiesel supplies increase. This is one of three facilities (farmers markets) operated by the West Virginia Department of Agriculture (Administrative Record Number WV-1471). Biodiesel is used to power farm machinery and school buses within the State. At least 13 counties in West Virginia use a biodiesel mixture to operate their school buses as reported by The Associated Press in *The Charleston Gazette* on June 9, 2006 (Administrative Record Number WV-1466). The State usually pays 85 percent of a county's maintenance and operational expenses, but it will pay 95 percent of those costs to counties as an incentive for using alternative fuels. IV. Summary and Disposition of Comments Public Comments We published a **Federal Register** notice on June 2, 2006, and asked for public comments on the proposed State amendment (Administrative Record Number WV-1464). The public comment period closed on July 3, 2006. No comments were received from the public. However, two Federal agencies commented on the amendment (see below). Federal Agency Comments Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the West Virginia program (Administrative Record Number WV-1463). We received comments from the U.S. Department of Labor, Mine Safety and Health Administration
(MSHA)on June 27, 2006 (Administrative Record Number WV-1467). MSHA stated that its review revealed that none of the proposed changes are relevant to miners' health and safety. MSHA stated that it has determined that there is no inconsistency or conflicts with MSHA standards. Environmental Protection Agency
(EPA)Concurrence and Comments Under 30 CFR 732.17(h)(11) (ii), we are required to obtain written concurrence from EPA for those provisions of the program amendment that relate to air or water quality standards issued under the authority of the Clean Water Act (33 U.S.C. 1251 *et seq.* ) or the Clean Air Act (42 U.S.C. 7401 *et seq.* ). None of the revisions that West Virginia proposed to make in this amendment pertain to air or water quality standards. Therefore, we did not ask EPA to concur on the amendment. Under 30 CFR 732.17(h)(11)(i), we requested comments on the amendment from EPA (Administrative Record Number WV-1463). EPA responded by letter dated June 29, 2006 (Administrative Record Number WV-1468), and stated that it has reviewed the proposed revisions and has not identified any apparent inconsistencies with the Clean Water Act, Clean Air Act, or other statutes and regulations under EPA's jurisdiction. EPA also provided the following comments on the proposed use of bio-oil cropland for postmining land use. EPA urged that bio-oil cropland be approved as a postmining land use for a particular mine only after due consideration is given to the broader watershed context in which the mine is located. If the mining proposal is part of, or should be made part of, a broader watershed mitigation or stewardship plan, the EPA stated, such a plan should take precedence over bio-oil cropland, particularly if the plan requires reforestation. In addition, the EPA stated, the impacts to downstream water quality from this kind of agricultural practice should also be considered in determining whether to approve bio-cropland for a particular mine. Tilling and fertilizing practices for bio-oil crops, the EPA stated, should be factored into potential downstream impacts as stressors to streams that may be already stressed from the mine in question as well as from mines, past and present, in other areas of the same watershed. We concur with these comments and note that the approved State provisions currently require consideration of post-reclamation water quality. The State provisions at CSR 38-2-7.3 provide the criteria for approving an alternative postmining land use. Subsection 7.3.a.2 provides that an alternative postmining land use may be approved by the WVDEP Secretary if, among other required criteria, the use does not present any actual or probable hazard to the public health or safety or threat of water diminution or pollution. As discussed above, the State's proposed bio-oil cropland provisions at Subsection 7.8 do not supersede or negate the existing State provisions at CSR 38-2-7.3. V. OSM's Decision Based on the above findings, we are approving the program amendment West Virginia sent us on April 17, 2006 (Administrative Record Number 1462). To implement this decision, we are amending the Federal regulations at 30 CFR part 948, which codify decisions concerning the West Virginia program. We find that good cause exists under 5 U.S.C. 553(d)(3) to make this final rule effective immediately. Section 503(a) of SMCRA requires that the State's program demonstrate that the State has the capability of carrying out the provisions of the Act and meeting its purposes. Making this rule effective immediately will expedite that process. SMCRA requires consistency of State and Federal standards. VI. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Executive Order 12866—Regulatory Planning and Review This rule is exempt from review by the Office of Management and Budget under Executive Order 12866. Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections
(a)and
(b)of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. Executive Order 13132—Federalism This rule does not have Federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally-recognized Indian tribes and have determined that the rule does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. The basis for this determination is that our decision is on a State regulatory program and does not involve a Federal regulation involving Indian lands. Executive Order 13211—Regulations That Significantly Affect The Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is
(1)Considered significant under Executive Order 12866, and
(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C)). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3507 *et seq.* ). Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a)Does not have an annual effect on the economy of $100 million;
(b)Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and
(c)Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations. Unfunded Mandates This rule will not impose an unfunded mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the analysis performed under various laws and executive orders for the counterpart Federal regulations. List of Subjects in 30 CFR Part 948 Intergovernmental relations, Surface mining, Underground mining. Dated: August 1, 2006. Brent Wahlquist, Regional Director, Appalachian Region. For the reasons set out in the preamble, 30 CFR part 948 is amended as set forth below: PART 948—WEST VIRGINIA 1. The authority citation for part 948 continues to read as follows: Authority: 30 U.S.C. 1201 *et seq.* 2. Section 948.15 is amended by adding a new entry to the table in chronological order by “Date of publication of final rule” to read as follows: § 948.15 Approval of West Virginia regulatory program amendments. Original amendment submission date Date of publication of final rule Citation/description * * * * * * * April 17, 2006 August 28, 2006 W. Va. Code 22-3-24(c), (d), (e), and (h). CSR 38-2-7.2.e.1; 7.3.d; and 7.8 (qualified approval). [FR Doc. E6-14228 Filed 8-25-06; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF THE INTERIOR Office of Surface Mining Reclamation and Enforcement 30 CFR Part 950 [WY-034-FOR] Wyoming Regulatory Program AGENCY: Office of Surface Mining Reclamation and Enforcement, Interior. ACTION: Final rule; approval of amendment. SUMMARY: We are approving an amendment to the Wyoming regulatory program (“Program” or “Wyoming program”) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act). It involves revisions to and additions of rules about bonding, revegetation and highwall retention. Wyoming intends to revise its program to be consistent with the corresponding Federal regulations, and clarify ambiguities and improve operational efficiency. DATES: *Effective Date:* August 28, 2006. FOR FURTHER INFORMATION CONTACT: Jeffrey Fleischman, Telephone: 307/261-6550, E-mail address: *JFleischman@osmre.gov.* SUPPLEMENTARY INFORMATION: I. Background on the Wyoming Program II. Submission of the Proposed Amendment III. Office of Surface Mining Reclamation and Enforcement's
(OSM)Findings IV. Summary and Disposition of Comments V. OSM's Decision VI. Procedural Determinations I. Background on the Wyoming Program Section 503(a) of the Act permits a State to assume primacy for the regulation of surface coal mining and reclamation operations on non-Federal and non-Indian lands within its borders by demonstrating that its State program includes, among other things, “a State law which provides for the regulation of surface coal mining and reclamation operations in accordance with the requirements of this Act * * *; and rules and regulations consistent with regulations issued by the Secretary pursuant to this Act.” See 30 U.S.C. 1253(a)(1) and (7). On the basis of these criteria, the Secretary of the Interior conditionally approved the Wyoming program on November 26, 1980. You can find background information on the Wyoming program, including the Secretary's findings, the disposition of comments, and conditions of approval in the November 26, 1980, **Federal Register** (45 FR 78637). You can also find later actions concerning Wyoming's program and program amendments at 30 CFR 950.12, 950.15, 950.16, and 950.20. II. Submission of the Proposed Amendment By letter dated October 24, 2005, Wyoming sent us an amendment to its program (Administrative Record No. WY-39-1) under SMCRA (30 U.S.C. 1201 *et seq.* ). Wyoming sent the amendment in response to a June 19, 1997, letter (Administrative Record No. WY-39-7) that we sent to Wyoming in accordance with 30 CFR 732.17(c) and to include changes made at its own initiative. We announced receipt of the proposed amendment in the February 13, 2006, **Federal Register** (71 FR 7492). In the same document, we opened the public comment period and provided an opportunity for a public hearing or meeting on the amendment's adequacy (Administrative Record No. WY-39-8). We did not hold a public hearing or meeting because no one requested one. The public comment period ended on March 14, 2006. We received comments from one industry group and two Federal agencies. A third Federal agency mailed us a “no comment” letter. III. OSM's Findings The Federal regulation at 30 CFR 732.17(h)(10) requires that State program amendments meet the criteria for approval of State programs set forth in 30 CFR 732.15, including that the State's laws and regulations are in accordance with the provisions of the Act and consistent with the requirements of 30 CFR part 700. In 30 CFR 730.5, OSM defines consistent with and in accordance with to mean
(a)with regard to the SMCRA, the State laws and regulations are no less stringent than, meet the minimum requirements of and include all applicable provisions of the Act and
(b)with regard to the Federal regulations, the State laws and regulations are no less effective than the Federal regulations in meeting the requirements of SMCRA. Following are the findings we made concerning the amendment under SMCRA and the Federal regulations at 30 CFR 732.15 and 732.17. We are approving the amendment in its entirety. A. Minor Revisions to Wyoming's Rules Wyoming proposed minor wording changes (from “SCS” to “NRSC,” (Natural Resources Soil Conservation) in Chapter 4, Section 2(d)(ix)) as well as an addition of an administrative paragraph (Chapter 15, Section 1(a)), to Wyoming's Coal Rules. Because these changes to Wyoming's rules are minor and do not alter their meaning, we find that the revised rules are consistent with the corresponding Federal regulations. B. Proposed Revisions to Wyoming's Coal Rules To Adopt Language With the Same Meaning as the Corresponding Provisions of the Federal Regulations Wyoming Coal Rule Chapter 15, Section 1(b); [Federal Regulations 30 CFR 800.40(a)(2) and (3)] Wyoming proposed revisions to its regulations for applications for bond release. These revisions are in response to a letter we sent dated June 19, 1997, under 30 CFR 732.17, informing Wyoming of changes to Federal regulations and the need to make corresponding changes to the State regulations. Wyoming's proposed revisions contain language that is nearly the same as the corresponding Federal provisions and is therefore consistent with the Federal regulations. C. Proposed Revisions to Wyoming's Rules That Are Not the Same as the Corresponding Federal Regulations and Require an Explanation and Basis for Approval 1. Chapter 4, Section 2(d)(x)(J): Technical Standards for Evaluating Revegetation Success [Federal Regulations at 30 CFR 816.116(a)(2) and (b)] Wyoming proposes to add a new rule at Chapter 4, Section 2(d)(x)(J) to state that the Administrator (of Wyoming's Land Quality Division, (LQD)) may set technical success standards for cover and production based on data collected from undisturbed portions of the permit area or adjacent areas for a minimum of five independent sampling programs over a minimum of five years and that the technical success standards may be set for a single mine or a group of mines in the same geographical area. The Federal regulations at 30 CFR 816.116(b)(1), and
(2)require that for grazing land, pastureland, and cropland, the cover and production of the revegetated area shall be at least equal to that of the reference area or such other success standards approved by the regulatory authority. Wyoming states the purpose of the proposed rule is to provide an alternate method to evaluate revegetation success, specifically, the development of technical standards for cover and production. The proposed standards are calculated from baseline vegetation data and the cover and production of the reclaimed area would be compared to those standards. Wyoming believes that a five-year period is necessary to account for differing climatic factors during the collection of baseline information for the development of these technical standards. Vegetation does vary across Wyoming and within smaller regions such as the Powder River Basin. However, smaller sub-regions (such as the southern portion of the Powder River Basin) and individual permit areas may have similar vegetation that could lend itself, or might be conducive to, development of technical standards. Mine operators could opt to apply for mine-specific technical standards in the event the LQD has not developed standards for the sub-region in which the mine is located. Alternatively, an operator could apply to “fine tune” technical standards developed by LQD for a particular sub-region. We have determined that the new technical standards Wyoming proposes to allow permittees to use are representative of unmined lands in the area being reclaimed. They were developed using baseline vegetation information collected from areas proposed for mining thereby ensuring that the success standards will be representative of the extent of cover compared to the cover occurring in the natural vegetation of the area. For these reasons, we find Wyoming's new technical standards to be consistent with the Federal regulations. 2. Chapter 4, Section 2(d)(x)(E)(III) & (F): Tree Density [Federal Regulations at 30 CFR 816.116(a)(2) and (b)(3)(i) & (ii)] Wyoming proposes changing Section 2(d)(x)(E)(III) to require that trees be returned to a number equal to the premining number by substituting the word “number” for the word “density”. In its submission, Wyoming states the proposed rule clarifies that the standard is the number of trees (sometimes the number of trees per species) on the affected lands, not on a unit area. Wyoming also proposes revisions to Section 2(d)(x)(F) to allow the inclusion of volunteer trees in evaluations of revegetation success. The revised rule requires that on affected lands, the total number of postmining trees must be at least equal to the premining total number on those lands. The reclamation plan will be required to specify the tree species, the number per species, and the location of tree plantings. To be included in success measurements, volunteer tree species which invade the reclaimed lands must support the postmining land use and must be approved by the Administrator. Planted trees must be healthy, and at least 80 percent must have been planted for at least eight years. Invading trees that are counted to meet the approved stocking rate must be healthy and may be of any age. Preference is given to those species that are native or which are known not to be “weedy” (e.g. species approved by the Natural Resources Conservation Service). Wyoming states that trees that invade indicate an evolving self-renewing ecosystem and therefore the age of trees that invade is not an issue as long as they are healthy. The Federal regulation at 30 CFR 816(a)(2) requires, in part, that standards for success shall include criteria representative of unmined lands in the area being reclaimed. 30 CFR 816.116(b)(3) establishes criteria for revegetation success standards for tree and shrub establishment. OSM agrees with Wyoming that the proposed wording change from “density” to “number” reflects the actual intent of the existing rule language, which is replacement of premine tree numbers. It should be noted that replacement of premine tree numbers is the same as replacement of premine tree density (total number of trees over the total disturbed area). We also agree with Wyoming's proposal to include volunteer trees that support the postmining land use and are not considered weedy. Section 515(b)(19) of the Act requires the operator to establish vegetation that is “capable of self-regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area.” Volunteer plants represent either regeneration of species already present on the reclaimed area or invasion of native species from adjacent undisturbed areas, which is an indication of plant succession. Live volunteer plants are as likely to continue to grow and mature as transplants of the same species that may be little more than two years old. Therefore, counting the first products of plant regeneration or invasion is a clear and reasonable indicator of successful reclamation. The proposed changes to the Wyoming rules are in accordance with Section 515(b)(19) of the Act which requires the operator to establish vegetation that is “capable of self regeneration and plant succession at least equal in extent of cover to the natural vegetation of the area.” The proposed changes are also consistent with 30 CFR 816.116 governing revegetation standards for success. 3. Chapter 4, Section 2(d)(xiv): Noxious Weeds [Federal Regulation at 30 CFR 816.111(b)(5)] Wyoming proposes to revise Section 2(d)(xiv) to require that the operator must control and minimize the introduction of noxious weeds in accordance with Federal and State requirements until bond release. Section 2(d)(xiv) currently requires that in those areas where there were no or very few noxious weeds prior to being affected by mining, the operator must control and minimize the introduction of noxious weeds into the revegetated areas for a period of at least five years after the initial seeding. The Federal regulation at 30 CFR 816.111(b)(5) requires, in part, that reestablished plant species shall meet the requirements of applicable State and Federal noxious plant laws or regulations. In its submission, Wyoming indicated that the current rule was enacted in 1975 prior to the passage of SMCRA when the State's time period for bond release was five years. The intent of the original rule was to control noxious weeds until bond release. The period for bond release is now ten years as required by SMCRA. While Wyoming's current rule was found to be consistent with the Federal rule when the Wyoming Program was approved in 1980, OSM revised the Federal rule in 1983. Wyoming's current rule could be interpreted to mean that noxious weeds are only controlled for the first five years after seeding. The Federal rule does not include a time restriction for the control of noxious weeds. To clarify and ensure consistency, with the ten year liability period, the existing language concerning five years has been struck and replaced with “until bond release.” The proposed State rule ensures that control of noxious weeds will continue throughout the period of responsibility in accordance with State and Federal requirements. This is consistent with the Federal regulations. 4. Chapter 4, Section 2(d)(x); Appendix A, Subsections III.A and VIII.A: Timeframes for Evaluating Revegetation Success [Federal Regulation at 30 CFR 816.116(c)(3)(i)] The revised rule will require that the Administrator not release the entire bond of any operator until such time as revegetation is complete, if revegetation is the method of reclamation as specified in the operator's approved reclamation plan. Revegetation shall be deemed to be complete when:
(1)The vegetation cover of the affected land is shown to be capable of renewing itself under natural conditions prevailing at the site, and the vegetative cover and total ground cover are at least equal to the cover on the area before mining;
(2)the productivity is at least equal to the productivity on the area before mining;
(3)the species diversity and composition are suitable for the approved postmining land use; and
(4)the requirements in (1), (2), and
(3)are met for the last two consecutive years of the bonding period for those mines using native area comparisons, or the requirements in (1), (2), and
(3)are met for two out of four years beginning no sooner than year eight of the bonding period for those mines using technical standards. In addition, Subsections III.A.8 and VIII.A.4 of Appendix A are being revised to require attainment of cover, production, diversity and composition requirements for the last two consecutive years for those mines using reference areas, or for those mines using an approved technical standard two out of four years beginning no sooner than year eight of the bonding period. The Federal regulation at 30 CFR 816.116(c)(3)(i) requires, in part, that in areas of 26 inches or less average annual precipitation, vegetation parameters identified in paragraph
(b)of this section shall equal or exceed the approved success standard for at least the last two consecutive years of the responsibility period. The major difference between the Federal regulation and Wyoming's proposal is that Wyoming's proposal would allow measurement in nonconsecutive years for areas evaluated using a technical standard. In discussing the proposed change in the timeframes for evaluating revegetation success, the State has indicated that the climatic conditions in Wyoming vary greatly from one year to the next. The climatic variability is not considered a problem in the use of a reference area because the reference area would be impacted by drought or other adverse environmental conditions in a manner similar to the corresponding reclaimed area. However, the climatic variability may impact an operator's ability to achieve two consecutive years of vegetation success when using a technical standard because the standard would not be based on drought conditions but on a mean or median of several years of differing climatic conditions (see approval of the use of technical standards in this review under Chapter 4, Section 2(d)(x)(J)). Wyoming hopes that allowing success to be measured in two out of four years beginning no sooner that year eight in lieu of requiring measurement in consecutive years will encourage operators to start bond release demonstrations sooner. Wyoming notes that the existing requirement for success to be measured in consecutive years means a failure to meet the criteria during the second year of sampling will force the sampling period to start over. Wyoming also notes that OSM regulations recognize climatic variability in the east and operators can meet the bond release criteria in any two years after year one. Wyoming states that eastern states have only a five-year bond period due to the amount of rainfall received and the positive effect the added moisture has on the ability to meet reclamation standards. Conversely, the western states have a ten-year bond period because of the limited rainfall and the longer time required for vegetation to become established during reclamation. Originally the Federal regulation applicable for areas with greater than 26 inches of annual precipitation (30 CFR 816.116(c)(2)) required success standards to be met for the last two consecutive years of the responsibility period. This regulation was amended (53 FR 34636, September 7, 1988) to allow the standard to be met during any two years of the five year responsibility period excluding the first year for areas with a land use of crop land, pasture land or grazing land, and only for the last year for all other postmining land uses. The change eliminated the requirement to measure revegetation success during the last two (consecutive) years of the responsibility period. The basis for the change was that measurements in nonconsecutive years avoid unduly penalizing the permittee for negative effects of climatic variability. Previously, we approved New Mexico regulations stating that ground cover and productivity shall equal the approved standard for at least two of the last four years, starting no sooner than year eight of the responsibility period. New Mexico, like Wyoming, experiences less than 26 inches of annual precipitation. We based our approval on the fact that the climatic variability of New Mexico was greater than that in areas with greater than 26 inches of precipitation. We stated it is appropriate to avoid penalizing permittees in New Mexico for the negative effects of climatic variability (the same reasoning used for areas receiving greater than 26 inches of precipitation). See New Mexico's approval at 65 FR 65770, November 2, 2000. Wyoming's mines are located in areas that represent variable precipitation ranges as shown on the table below. The data in the following table is from the monthly climate data, Western Regional Climate Center ( *http://www.wrcc.dri.edu/summary/climsmwy.html* ), and the November 2, 2000, **Federal Register** (Volume 65, Number 213, pages 65776-65777). Historical Precipitation Geographical area Years of record Precipitation range (inches) Mean Standard deviation Coefficient of variation Gillette, WY 1925-2005 8.13-15.90 15.60 3.77 0.24 Rock Springs, WY 1948-2005 4.53-14.54 8.71 2.64 0.30 Medicine Bow, WY 1949-2005 5.34-15.90 10.16 2.22 0.22 Henderson, KY 1978-1998 30.94-63.27 45.64 8.89 0.19 As seen in the table above, the coefficient of variation (a measure of the variability of the data) for the Wyoming locations is greater than the Henderson, Kentucky, location, which is representative of conditions in the east. Given the variability in precipitation, a dry year may present an obstacle to the second year of revegetation success sampling, particularly when the success standard is a technical standard based on a cover or production mean or median from several years of sampling during differing climatic conditions. Flexibility in vegetation success sampling is needed to skip the drought year(s), and allow the operator to sample in one of the two following non-consecutive years. A demonstration of successful revegetation following a drought would clearly indicate the revegetation could withstand drought and the variable climatic conditions. Arguably, revegetation that is capable of meeting the performance standards both before and after a period of drought or pestilence would provide a better demonstration of resilience, effectiveness, and permanence than revegetation meeting the standards during two consecutive years of more or less normal precipitation and damage. The likelihood of drought in Wyoming needs to be recognized. The proposed rule changes ensure that performance standards will be met without undue costs or extensions of the ten year liability period. Wyoming's proposed rules prohibit the inclusion of measurements taken during the first seven years of the responsibility period and are applicable only to reclaimed areas using technical standards for evaluation of revegetation success. This ensures that the plants will have the opportunity to become well established prior to any evaluation of the vegetation. This also provides the same level of flexibility in evaluating revegetation success provided by the Federal regulations for States receiving more than 26 inches of precipitation. The proposed rules do not affect the length of the extended period of responsibility, which is 10 years in Wyoming. The preamble to 30 CFR 816.116(c)(3)(i) published in the **Federal Register** on March 23, 1982, (47 FR 12600) and applicable to areas of 26 inches or less precipitation, does not provide rationale for the measurement being made in consecutive years. The preamble does state that for areas of less than 26 inches average annual precipitation, because of the greater variability in climatic conditions in such areas, especially precipitation, it is difficult to base success on a single year's data. Thus, there is support for requiring two years of success, but not necessarily for consecutive years. Wyoming's proposed rules at Chapter 4, Section 2(d)(x)and Appendix A, Subsections III.A and VIII.A are consistent with the corresponding Federal regulations at 30 CFR 816.116(c)(3) and in accordance with the achieving the revegetation requirements of sections 515(b)(19) and (b)(20) of SMCRA. 5. Chapter 4, Section 2(b)(iv): Retention of Portions of Highwalls [SMCRA at Section 515(b)(3)] Wyoming is proposing in Section 2(b)(iv) to allow the retention of limited stretches of highwall to replace escarpments and cliffs that exist naturally in the area of the mine prior to the mine operations. Previously. OSM approved similar provisions for the New Mexico and Utah State regulatory programs (45 FR 86464, December 31, 1980 and 60 FR 28040, May 30, 1995). In the New Mexico and Utah approvals, OSM required the State programs to contain the following provisions:
(1)Requirement for regulatory authority approval;
(2)restrictions on allowable height and length of the retained highwall in relation to natural escarpments and cliffs;
(3)requirement that a retained highwall replace a preexisting cliff or similar natural premining feature that was removed by the mining operation; and
(4)requirement for the permit applicant to demonstrate that the retained highwall feature is stable and will achieve a long term static safety factor of 1.3 and will not pose a hazard to the public health and safety. With these restrictions, OSM found provisions for limited highwall retention in the New Mexico and Utah regulatory programs to be in accordance with the requirements in section 515(b)(3) of the Act and consistent with 30 CFR 816.102(a)(2) to backfill and grade to achieve the approximate original contour (AOC). AOC in these requirements includes the provision to eliminate all highwalls. The establishment of the above restrictions, however ensures that for a limited stretch of highwall to be retained, it must replace a similar feature that exists in the original contours thereby meeting the requirement to restore AOC. In the approval of the provision for New Mexico, OSM found that if an operator can demonstrate to the satisfaction of the Director (State) that all of the above criteria can be met, then the limited highwall retention is available. Such retention in these instances actually reflects the intent of “approximate original contour” since these features were part of the natural pre-mined landscape. Wyoming's provisions for highwall retention to replace existing natural features are contained in Chapter 4, Section 2(b)(iv) of Wyoming's Coal Rules. As we required in the Utah and New Mexico programs, Wyoming requires the features to be approved by the regulatory authority (Administrator). In addition, Wyoming's provisions ensure stability and a factor of safety of 1.3; contain restrictions on allowable height and length in relation to premine features; require restoration of wildlife habitat; and replacement of natural features that were mined out or are planned to be mined out under the current mine plan. For these reasons, we find Wyoming's provisions for highwall retention to be in accordance with section 515(b)(3) of SMCRA and consistent with 30 CFR 816.102(a)(2). D. Revisions to Wyoming's Rules With No Corresponding Federal Regulations 1. Chapter 4, Section 2(d),(x), and Appendix A, Subsections III.A, VII.E, VIII.A and VIII.F: Grazing Wyoming proposes to revise this rule to eliminate the requirement that the revegetated area be capable of withstanding grazing pressure at least comparable to that which the land could have sustained prior to mining unless Federal, State or local regulations prohibit grazing on such lands. There is no Federal counterpart to this Wyoming Coal Rule. The State requirement now being eliminated corresponded to Federal regulations promulgated in 1979 at 30 CFR 816.115, but removed by OSM on September 2, 1983 (48 FR 40160) in response to a U.S. District Court ruling “Permanent Surface Mining Regulation Litigation,” No. 79-1144 (D.D.C., February 26, 1980). Eliminating Wyoming's requirement is consistent with the Federal regulations. 2. Chapter 4, Section 2(d)(x)(E)(I) & (II): Reinstatement of Pre-1996 Shrub Goal Wyoming proposes to reinstate its shrub goal rule for the postmining land use of grazing and wildlife and also clarify that this is to be applied from May 3, 1978, to August 6, 1996. The rule establishes postmining requirements for density, composition and distribution of shrubs. There is no Federal counterpart to this Wyoming Coal Rule. In its submission, Wyoming indicated that in 1978 rules were adopted that required shrubs to be replaced to a density equal to the premining density. For the postmining land use of grazing land and wildlife, and other areas, the amount of shrubs required by the rule was not desirable. In 1981, Wyoming changed the rules to establish a goal of returning shrubs to one shrub per square meter across 10% of the reclaimed lands. In 1996, a rule was approved which changed the requirement for the reestablishment of shrubs from a 10% goal to a 20% standard. The effective date of the new rules was the date those rules were approved by OSM. Lands disturbed before that date retained the shrub goal requirement. Unfortunately, the 1996 rule inadvertently deleted the shrub goal rule. The deletion of the shrub goal rule was an oversight, and it was intended that the shrub goal rule still applied to those lands affected after the initial date of the shrub reestablishment requirement
(1978)and prior to the approval of the shrub standard rule (1996). In practice, both the LQD and the operators have been working with the understanding that the shrub goal would be reinstated. The proposed change reinstates the goal and clarifies that prior to May 3, 1978, there was no specific requirement for shrub reestablishment. The change clarifies that the shrub goal is to be applied from May 3, 1978, to August 6, 1996. OSM concurs with Wyoming's analysis of the shrub density requirements applicable to lands reclaimed under Wyoming's regulatory program. Since neither SMCRA nor the Federal regulations contain shrub goals, Wyoming's proposal to reinstitute this previously-approved rule is consistent with the Federal regulations. IV. Summary and Disposition of Comments Public Comments We asked for public comments on the amendment (Administrative Record No. WY-39-3), but did not receive any from State agencies or individuals. Since no one requested a public hearing or meeting, none was held. Federal Agency Comments Under 30 CFR 732.17(h)(11)(i) and section 503(b) of SMCRA, we requested comments on the amendment from various Federal agencies with an actual or potential interest in the Wyoming program (November 1, 2005, Administrative Record No. WY-39-3). The U.S. Fish and Wildlife Service (FWS or the Service) commented in a December 23, 2005, memorandum (Administrative Record No. WY-39-06), and the Bureau of Land Management
(BLM)commented in a November 30, 2005, e-mail (Administrative Record No. WY-39-05). The U.S. Department of Agriculture's Natural Resources Conservation Service
(NRCS)also commented in a November 28, 2005, letter (Administrative Record No. WY-39-04). NRCS stated that it reviewed the Amendment and had no comments. BLM stated that the requirement in existing Section 2(b) Backfilling, Grading and Contouring, for covering the uppermost minable coal seam should be changed from 4 feet to at least 20 feet. BLM states this is necessary to “prevent outcrop burn in the future” and that “this is important in SW Wyoming.” The State's proposed revision is only applicable to areas subject to the AOC Alternative. OSM's regulation in this matter, 30 CFR 816.102(f), that all exposed coal seams be “adequately covered,” and does not define a minimum depth. Wyoming stated that, while 4 feet is the minimum cover requirement, it often requires 10 or 15 feet or more depending upon the circumstances. The preamble to 30 CFR 816.102(f) (see 48 FR 23362, May 24, 1983) rejects a national standard for cover thickness and relies on the regulatory authority to set whatever standards, specific or otherwise, which provide the best solution within the State. The State's proposed regulation requiring a minimum of 4 feet of cover is consistent with the Federal provisions. Wyoming can require additional depth should it determine that is necessary. The FWS stated that it “supports the rule package as written;” however, it was providing specific comments that it believed would assist in clarifying the rule changes. The FWS provided seven specific comments listed below. Each comment is followed by OSM's response: 1. *FWS:* Revegetation Success, Chapter 4, Section 2(d)(x): It is unclear whether the Administrator is qualified to measure whether reclamation meets with the postmining land use or whether the Administrator will seek assistance in the matter. Therefore, the Service recommends that a recognized authority assist the Administrator in determining whether the vegetative diversity and composition meet the postmining land use. *OSM:* The Wyoming regulatory authority employs vegetation experts to assist with the administration of this provision. 2. *FWS:* Native trees, Chapter 4, Section 2(d)(x)(EIII): The Service is concerned that the rules do not mention the importance of replanting tree species that are native to Wyoming. The Service recommends that trees and shrubs native to Wyoming be planted at a number equal to or greater than what existed premining and that distribution of trees be similar to premining distribution. *OSM:* In its Statement of Principal Reasons for changing the rule cited by FWS, Wyoming states that “preference is given to those species that are native or which are known not to be weedy.” In addition, the Wyoming rules in, in Chapter 4, Section 2(d)(i) require that the operator establish on all affected lands a diverse, permanent vegetative cover of the same seasonal variety native to the area or a mixture of species that will support the approved postmining land use in a manner consistent with the approved reclamation plan. This will result in the use of native tree species in a large percentage of permits. As discussed in this rulemaking, the State is requiring replacement of premine number of trees. Planting plans are included in permit applications, which are available for review and comment. 3. *FWS:* Critical habitat, Chapter 4(IV): The Service is concerned with the use of the term “critical habitat” when not referencing listed species. The Service uses this term to identify specific areas within a geographical area occupied by a listed species. We recommend that the rules clearly define this term as it pertains to the document or use some other terminology less agency-specific. *OSM:* Critical Habitat Is Defined in Chapter 1, Section 2(v) of Wyoming's Coal Rules. 4. *FWS:* Invading trees, Chapter 4(F): The Service is concerned that such species as Russian olive and/or tamarisk may “invade” the reclaimed lands and crowd out native species. The Service recommends that tree species be native to Wyoming and that the permittee not receive credit for non-natives. *OSM:* Again, Wyoming's Statement of Principal Reasons (for the Amendment) states that “preference is given to those species that are native or which are known not to be ‘weedy’ ”. 5. *FWS:* Bond release and wildlife, Chapter 15, Section 1(b): The Service is concerned that no information is required regarding fish or wildlife resources or status of listed species prior to bond release. Therefore, prior to bond release the Service recommends a status review of fish and wildlife resources and a comparison to the baseline information to determine whether changes have occurred that should be addressed prior to bond release. *OSM:* The only changes made to Chapter 15, Section 1(b) relate to a notarized statement. Also, Appendix B of Wyoming's Coal Rules includes the monitoring requirements related to wildlife. An operator must submit wildlife information which includes consultation with FWS prior to issuing a permit to mine. Inspections, annual reports and other information submitted will form the basis of the Administrator's decision of whether or not to release the bond. 6. *FWS:* Appendix A, Subsection VIII(F)(8): The Service recommends that the qualitative assessment include whether native vegetation is present and at densities equal to or greater than premining. *OSM:* This Section was merely renumbered and none of the previously-approved language was changed. 7. *FWS:* Highwall retention and wildlife habitat, Chapter 4, Section (b)(iv): The Service is concerned that the decision to retain highwalls may not consider the needs of local raptors. The Service recommends that highwall retention be considered as raptor nesting habitat in coordination with the Service and other qualified biologists. *OSM:* OSM is approving in III.C.5 above Wyoming's requirements for highwall retention that are contained in Chapter 4, Section 2(b)(iv) of Wyoming's Coal Rules. One of the requirements is that the retained highwall will enhance or restore important wildlife habitat. This would include raptor nesting habitat. Also, Appendix B, Section C of Wyoming's Coal Rules contains requirements for raptor production and monitoring so consideration of raptor nesting habitat will be taken into account when considering highwall retention. In addition, State and Federal wildlife agencies are provided opportunity to review and comment on proposed permits. Environmental Protection Agency
(EPA)Concurrence and Comments Under 30 CFR 732.17(h)(11)(i), OSM requested comments on the amendment from EPA (Administrative Record No. WY-39-3). EPA did not respond to our request. State Historic Preservation Officer
(SHPO)and the Advisory Council on Historic Preservation
(ACHP)Under 30 CFR 732.17(h)(4), we are required to request comments from the SHPO and ACHP on amendments that may have an effect on historic properties. On November 1, 2005, we requested comments on Wyoming's amendment (Administrative Record No. WY-39-3), but neither responded to our request. V. OSM's Decision Based on the above findings, we approve Wyoming's October 24, 2005 amendment, as discussed in: finding no. A; finding no. B; findings no. C.1, C.2, C.3, C.4, and C.5; and finding nos. D.1, and D.2. VI. Procedural Determinations Executive Order 12630—Takings This rule does not have takings implications. This determination is based on the analysis performed for the counterpart Federal regulation. Executive Order 12866—Regulatory Planning and Review This rule is exempted from review by the Office of Management and Budget
(OMB)under Executive Order 12866 (Regulatory Planning and Review). Executive Order 12988—Civil Justice Reform The Department of the Interior has conducted the reviews required by section 3 of Executive Order 12988 and has determined that this rule meets the applicable standards of subsections
(a)and
(b)of that section. However, these standards are not applicable to the actual language of State regulatory programs and program amendments because each program is drafted and promulgated by a specific State, not by OSM. Under sections 503 and 505 of SMCRA (30 U.S.C. 1253 and 1255) and the Federal regulations at 30 CFR 730.11, 732.15, and 732.17(h)(10), decisions on proposed State regulatory programs and program amendments submitted by the States must be based solely on a determination of whether the submittal is consistent with SMCRA and its implementing Federal regulations and whether the other requirements of 30 CFR parts 730, 731, and 732 have been met. Executive Order 13132—Federalism This rule does not have federalism implications. SMCRA delineates the roles of the Federal and State governments with regard to the regulation of surface coal mining and reclamation operations. One of the purposes of SMCRA is to “establish a nationwide program to protect society and the environment from the adverse effects of surface coal mining operations.” Section 503(a)(1) of SMCRA requires that State laws regulating surface coal mining and reclamation operations be “in accordance with” the requirements of SMCRA, and section 503(a)(7) requires that State programs contain rules and regulations “consistent with” regulations issued by the Secretary pursuant to SMCRA. Executive Order 13175—Consultation and Coordination With Indian Tribal Governments In accordance with Executive Order 13175, we have evaluated the potential effects of this rule on Federally recognized Indian Tribes and have determined that the rule does not have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal government and Indian Tribes, or on the distribution of power and responsibilities between the Federal government and Indian Tribes. The rule does not involve or affect Indian Tribes in any way. Executive Order 13211—Regulations That Significantly Affect the Supply, Distribution, or Use of Energy On May 18, 2001, the President issued Executive Order 13211 which requires agencies to prepare a Statement of Energy Effects for a rule that is
(1)considered significant under Executive Order 12866, and
(2)likely to have a significant adverse effect on the supply, distribution, or use of energy. Because this rule is exempt from review under Executive Order 12866 and is not expected to have a significant adverse effect on the supply, distribution, or use of energy, a Statement of Energy Effects is not required. National Environmental Policy Act This rule does not require an environmental impact statement because section 702(d) of SMCRA (30 CFR U.S.C. 1292(d)) provides that agency decisions on proposed State regulatory program provisions do not constitute major Federal actions within the meaning of section 102(2)(C) of the National Environmental Policy Act (42 U.S.C. 4332(2)(C) *et seq.* ). Paperwork Reduction Act This rule does not contain information collection requirements that require approval by OMB under the Paperwork Reduction Act (44 U.S.C. 3501 *et seq.* ). Regulatory Flexibility Act The Department of the Interior certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ). The State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an economic analysis was prepared and certification made that such regulations would not have a significant economic effect upon a substantial number of small entities. In making the determination as to whether this rule would have a significant economic impact, the Department relied upon the data and assumptions for the counterpart Federal regulations. Small Business Regulatory Enforcement Fairness Act This rule is not a major rule under 5 U.S.C. 804(2), of the Small Business Regulatory Enforcement Fairness Act. This rule: a. Does not have an annual effect on the economy of $100 million. b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions. c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. This determination is based upon the fact that the State submittal which is the subject of this rule is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation was not considered a major rule. Unfunded Mandates This rule will not impose an Unfunded Mandate on State, local, or tribal governments or the private sector of $100 million or more in any given year. This determination is based upon the fact that the State submittal, which is the subject of this rule, is based upon counterpart Federal regulations for which an analysis was prepared and a determination made that the Federal regulation did not impose an unfunded mandate. List of Subjects in 30 CFR part 950 Intergovernmental relations, Surface mining, Underground mining. Dated: July 28, 2006. Allen D. Klein, Regional Director, Western Region. For the reasons set forth in the preamble, 30 CFR part 950 is amended to read as follows: PART 950—WYOMING 1. The authority citation for part 950 continues to read as follows: Authority: 30 U.S.C. 1201 *et seq.* 2. Section 950.15 is amended in the table by adding a new entry in chronological order by “Date of Final Publication” to read as follows: § 950.15 Approval of Wyoming regulatory program amendments. Original amendment submission date Date of final publication Citation/description * * * * * * * 10/24/05 8/28/06 Chapter 4, Section 2(b)(iv) Chapter 4, Section 2(d)(ix) Chapter 4, Section 2(d)(x) Chapter 4, Section 2(d)(x), Appendix A, Subsection III.A; VII.E; VIII.A & VIII.F Chapter 4, Section 2(d)(x)(E)(I)&(II) Chapter 4, Section 2(d)(x)(E)(III) &
(F)Chapter 4, Section 2(d)(x)(J) Chapter 4, Section 2(d)(xiv) Chapter 15, Section 1(a) Chapter 15, Section 1(b) [FR Doc. E6-14225 Filed 8-25-06; 8:45 am] BILLING CODE 4310-05-P DEPARTMENT OF HOMELAND SECURITY Federal Emergency Management Agency 44 CFR Part 64 [Docket No. FEMA-7788] List of Communities Eligible for the Sale of Flood Insurance AGENCY: Mitigation Division, Federal Emergency Management Agency (FEMA), Department of Homeland Security. ACTION: Final rule. SUMMARY: This rule identifies communities that are participating and suspended from the National Flood Insurance Program (NFIP). These communities have applied to the program and have agreed to enact certain floodplain management measures. The communities' participation in the program authorizes the sale of flood insurance to owners of properties located in the communities listed below. DATES: *Effective Dates:* The effective date for each community is listed in the fourth column of the following tables. ADDRESSES: Flood insurance policies for properties located in the communities listed below can be obtained from any licensed property insurance agent or broker serving the eligible community or from the NFIP by calling 1-800-638-6620. FOR FURTHER INFORMATION CONTACT: David H. Stearrett, Chief, Floodplain Management Section, Risk Reduction Branch, Mitigation Division, 500 C Street, SW., Washington, DC 20472,
(202)646-2953. SUPPLEMENTARY INFORMATION: The NFIP enables property owners to purchase flood insurance that is generally not otherwise available. In return, communities agree to adopt and implement local floodplain management regulations that contribute to protecting lives and reducing the risk of new construction from future flooding. Because the communities on the attached list have recently entered the NFIP, subsidized flood insurance is now available for properties in these communities. FEMA has identified the Special Flood Hazard Areas (SFHAs) in some of these communities by publishing a Flood Hazard Boundary Map
(FHBM)or Flood Insurance Rate Map (FIRM). The date of the flood map, if one has been published, is indicated in the fourth column of the table. In the communities listed where a flood map has been published, Section 202 of the Flood Disaster Protection Act of 1973, as amended, 42 U.S.C. 4016(a), requires the purchase of flood insurance as a condition of Federal or Federally-related financial assistance for acquisition or construction of buildings in the SFHAs shown on the map. The Administrator finds that delayed effective dates would be contrary to the public interest and that notice and public procedure under 5 U.S.C. 553(b) are impracticable and unnecessary. *National Environmental Policy Act.* This rule is categorically excluded from the requirements of 44 CFR part 10, Environmental Considerations. No environmental impact assessment has been prepared. *Regulatory Flexibility Act.* The Administrator certifies that this rule will not have a significant economic impact on a substantial number of small entities in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 *et seq.* , because the rule creates no additional burden, but lists those communities eligible for the sale of flood insurance. *Regulatory Classification.* This final rule is not a significant regulatory action under the criteria of section 3(f) of Executive Order 12866 of September 30, 1993, Regulatory Planning and Review, 58 FR 51735. *Paperwork Reduction Act.* This rule does not involve any collection of information for purposes of the Paperwork Reduction Act, 44 U.S.C. 3501 et seq. List of Subjects in 44 CFR Part 64 Flood insurance, Floodplains. Accordingly, 44 CFR part 64 is amended as follows: PART 64—[AMENDED] 1. The authority citation for part 64 is revised to read as follows: Authority: 42 U.S.C. 4001 *et seq.* , Reorganization Plan No. 3 of 1978, 3 CFR, 1978 Comp., p. 329; E.O. 12127, 44 FR 19367, 3 CFR, 1979 Comp., p. 376. § 64.6 [Amended] The tables published under the authority of § 64.6 are amended as follows: State Location Community No. Effective date of eligibility Current effective map date New Eligibles: Emergency Program Region V Minnesota Apple Valley, City of, Dakota County 270050 April 14, 2006 Never Mapped. Region VI Arkansas Datto, Town of, Clay County 050190 May 23, 2006 Never Mapped. Do * Nimmons, Town of, Clay County 050332 ......do Do. Region VII Missouri Merriam Woods, Village of, Taney County 290069 June 21, 2006 Adopted Preliminary FIRM dated September 26, 2006. Region IV Alabama Phil Campbell, Town of, Franklin County 010333 June 26, 2006 FHBM dated of, October 29, 1976. Georgia Oxford, City of, Newton County 130367 ......do April 11, 1975. New Eligibles: Regular Program Region VII Missouri Cedar County, Unincorporated Areas 290791 April 11, 2006 July 17, 2002. Region VI Arkansas Lonsdale, Town of, Garland County 050586 April 14, 2006 Use Garland County (CID 050433) FIRM panel 125C, dated February 15, 1991. Region VII Iowa Grundy County, Unincorporated Areas 190870 April 21, 2006 October 19, 2005. Do Hancock, City of, Pottawattamie County 190236 ......do Use Pottawattamie County (CID 190232) FIRM panel 338E, dated February 4, 2005. Do Wellsburg, City of, Grundy County 190680 ......do Use Garland County (CID 190870) FIRM panels 160B and 170B, dated October 19, 2005. Region IV Florida Lake Placid, City of, Highlands County 120028 April 25, 2006 Use Highland County (CID 120111) FIRM panels 150B and 175B, dated February 16, 1983. Do West Park, City of, Broward County 120222 ......do Use Broward County (CID 125093) FIRM panels 312F, 0314F, 316F and 318F, dated August 18, 1992. Region VII Missouri Linn, City of, Osage County 290708 April 28, 2006 Use Osage County (CID 290268) FIRM panel 255D, dated September 2, 2005. Region X Washington ** Republic, Town of, Ferry County 530042 May 2, 2006 May 2, 2006. Region V Michigan Powell, Township of, Marquette County 260452 May 4, 2006 November 20, 2000. Region VII Iowa Tama County, Unincorporated Areas 190908 May 4, 2006 January 9, 2006. Region IV Georgia ** Hampton, Town of, Henry County 130107 May 16, 2006 May 16, 2006. Do Rutledge, Town of, Morgan County 130363 May 19, 2006 February 15, 2002. Region VII Nebraska Pawnee County, Unincorporated Areas 310463 June 6, 2006 July 5, 2005. Do Johnson County, Unincorporated Areas 310122 ......do April 17, 2006. Region VI Louisiana Stonewall, Town of, De Soto Parish 220411 June 21, 2006 December 16, 2003. Region V Michigan Stevensville, Village of, Berrien County 260557 June 23, 2006 April 17, 2006. Region IV Alabama Garden City, Town of, Cullman County 010436 June 26, 2006 Use Cullman County (CID 010247) FIRM panels 345D,365D, and 485D, dated December 2, 2004. Do Holly Pond, Town of, Cullman County 010440 ......do Use Cullman County (CID 010247) FIRM panel 265D dated December 2, 2004. Do Somerville, City of, Morgan County 010363 ......do December 16, 2005. Do Vance, Town of, Tuscaloosa and Bibb Counties 010428 ......do Use Tuscaloosa County (CID 010201) FIRM panels 575E and 600E, dated September 7, 2000. Georgia Grantville, City of, Coweta County 130443 ......do May 16, 2006. Do Locust Grove, City of, Henry County 130032 ......do Do. Do Sharpsburg, City of, Coweta County 130581 ......do Do. Do Turin, City of, Coweta County 130475 ......do Do. Region VI Arkansas Cedarville, City of, Crawford, County 050505 ......do Use Crawford County (CID 050428) FIRM panels 100E and 175E, dated December 20,2000. Region VII Missouri Moscow Mills, City of, Lincoln County 290546 ......do Use Lincoln County (CID 290869) FIRM panel 185C, dated April 3, 1993. Reinstatements Region V Ohio Washington County, Unincorporated Areas 390566 April 6, 2006 February 16, 2006. Region IV North Carolina Carolina Beach, Town of, Hanover County 375347 April 7, 2006 April 3, 2006. Region V Michigan Michiana, Village of, Berrien County 260275 May 16, 2006 April 17, 2006. Do Niles, Township of, Berrien County 260041 ......do Do. Region VII Missouri Creighton, City of, Cass County 290063 ......do March 16, 2006. Do East Lynne, City of, Cass County 290065 ......do Do. Region V Michigan Buchanan, City of, Berrien County 260554 May 17, 2006 April 17, 2006. Do New Buffalo, Township of, Berrien County 260039 May 18, 2006 Do. Do Niles, City of, Berrien County 260040 ......do Do. Region I Vermont Alburg, Town of, Grand Isle County 500221 June 20, 2006 May 5, 1981. Do Brookline, Town of, Windham County 500208 ......do September 4, 1985. Region IV Georgia Arlington, City of, Calhoun and Early Counties 130026 June 26, 2006 June 3, 1986. Withdrawals Suspensions Region IV North Carolina Carolina Beach, Town Hanover County 275347 April 5, 2006 April 3, 2006. Region V Michigan Benton, Township of, Berrien County 260031 April 19, 2006 April 17, 2006. Do Benton Harbor, City of, Berrien County 260032 ......do Do. Do Buchanan, City of, Berrien County 260554 ......do Do. Do Coloma, City of, Berrien County 260556 ......do Do. Do Lake, Township of, Berrien County 260036 ......do Do. Do Michiana, Village of, Berrien County 260275 ......do Do. Do New Buffalo, Township of, Berrien County 260039 ......do Do. Do Niles, City of, Berrien County 260040 ......do Do. Do Niles, Township of, Berrien County 260041 ......do Do. Do Watervliet, City of, Berrien County 260047 ......do Do. Region IV North Carolina Fuquay-Varina, Town of, Wake County 370239 May 8, 2006 May 2, 2006. Do Wake Forest, Town of, Wake County 370244 ......do Do. Probation Region IV North Carolina Erwin, Town of, Harnett County 370456 April 28, 2006 April 16, 1990. Region V Indiana Patriot, Town of, Switzerland County 180309 Probation Lifted December 4, 2006 June 30, 1979. Suspension Rescissions Region IV North Carolina Kure Beach, Town of, New Hanover County 370170 April 4, 2006 Suspension Notice Rescinded April 3, 2006. Do New Hanover County, Unincorporated Areas 370168 ......do Do. Do Wilmington, City of, New Hanover County 370171 ......do Do. Do Wrightsville Beach, Town of, New Hanover County 375361 ......do Do. Region V Ohio Adena, Village of, Jefferson County 390295 ......do April 5, 2006. Do Bellaire, Village of, Belmont County 390025 ......do Do. Do Belmont County, Unincorporated Areas 390762 ......do Do. Do Bethesda, Village of, Belmont County 390674 ......do Do. Do Bridgeport, Village of, Belmont County 390026 ......do Do. Do Brookside, Village of, Belmont County 390027 ......do Do. Do Columbiana County, Unincorporated Areas 390076 ......do Do. Do Holloway, Village of, Belmont County 390028 ......do Do. Do Irondale, Village of, Jefferson County 390741 ......do Do. Do Martins Ferry, City of, Belmont County 390029 ......do Do. Do New Waterford, Village of, Columbiana County 390663 ......do Do. Do Rogers, Village of, Columbiana County 390645 ......do Do. Do Salineville, Village of, Columbiana County 390628 ......do Do. Do Shadyside, Village of, Belmont County 390031 ......do Do. Do Steubenville, City of, Jefferson County 390302 ......do Do. Do Stratton, Village of, Jefferson County 390303 ......do Do. Do Tiltonsville, Village of, Jefferson County 390634 ......do Do. Do Washingtonville, Village of, Columbiana County 390087 ......do Do. Do Wellsville, Village of, Columbiana County 390088 ......do Do. Do Yorkville, Village of, Belmont and Jefferson Counties 390033 ......do Do. Region VII Missouri Arnold, City of, Jefferson County 290188 ......do Do. Do Byrnes Mill, City of, Jefferson County 290891 ......do Do. Do Festus, City of, Jefferson County 290191 ......do Do. Do Herculaneum, City of, Jefferson County 290192 ......do Do. Do Hillsboro, City of, Jefferson County 290573 ......do Do. Do Jefferson County, Unincorporated Areas 290808 ......do Do. Do Kimmswick, City of, Jefferson County 290193 ......do Do. Do Pevely, City of, Jefferson County 290677 ......do Do. Do Scotsdale, Town of, Jefferson County 290949 ......do Do. Region V Michigan Berrien Springs, Village of, Berrien County 260330 April 17, 2006 Suspension Notice Rescinded April 17, 2006. Do Coloma, Township of, Berrien County 260034 ......do Do. Do Hagar, Township of, Berrien County 260035 ......do Do. Do Lincoln, Township of, Berrien County 260037 ......do Do. Do New Buffalo, City of, Berrien County 260038 ......do Do. Do Oronoko, Township of, Berrien County 260042 ......do Do. Do Watervliet, Township of, Berrien County 260048 ......do Do. Minnesota Big Stone County, Unincorporated Areas 270652 ......do Do. Do Clinton, City of, Big Stone County 270024 ......do Do. Do Graceville, City of, Big Stone County 270026 ......do Do. Do Odessa, City of, Big Stone County 270027 ......do Do. Do Ortonville, City of, Big Stone County 270028 ......do Do. Region VII Nebraska Sterling, Village of, Johnson County 310126 ......do Do. Region IV North Carolina Apex, Town of, Wake County 370467 May 5, 2006 Suspension Notice Rescinded May 2, 2006. Do Cary, Town of, Wake County 370238 ......do Do. Do Durham, City of, Durham County 370086 ......do Do. Do Durham County, Unincorporated Areas 370085 ......do Do. Do Garner, Town of, Wake County 370240 ......do Do. Do Holly Springs, Town of, Wake County 370403 ......do Do. Do Knightdale, Town of, Wake County 370241 ......do Do. Do Morrisville, Town of, Wake County 370242 ......do Do. Do Raleigh, City of, Wake County 370243 ......do Do. Do Rolesville, Town of, Wake County 370468 ......do Do. Do Wake County, Unincorporated Areas 370368 ......do Do. Do Wendell, Town of, Wake County 370245 ......do Do. Do Zebulon, Town of, Wake County 370246 ......do Do. Region I New Hampshire Cornish, Town of, Sullivan County 330155 May 30, 2006 Suspension Notice Rescinded May 23, 2006. Do Marlow, Town of, Cheshire County 330025 ......do Do. Do Newport, Town of, Sullivan County 330161 ......do Do. Do Roxbury, Town of, Cheshire County 330172 ......do Do. Do Westmoreland, Town of, Cheshire County 330238 ......do Do. Region III Virginia Fairfax, City of, Independent City 515524 June 12, 2006 Suspension Notice Rescinded June 2, 2006. Region IV North Carolina Bald Head Island, Village of, Brunswick County 370442 ......do Do. Do Belville, Town of, Brunswick County 370545 ......do Do. Do Boiling Spring Lake, City of, Brunswick County 370453 ......do Do. Do Bolivia, Town of, Brunswick County 370394 ......do Do. Do Bolton, Town of, Columbus County 370274 ......do Do. Do Brunswick County, Unincorporated Areas 370295 ......do Do. Do Calabash, Town of, Burnswick County 370395 ......do Do. Do Carolina Shores, Town of Brunswick County 370517 ......do Do. Do Caswell Beach, Town of Brunswick County 370391 ......do Do. Do Cerro Gordo, Town of, Columbus County 370311 ......do Do. Do Chadbourn, Town of, Columbus County 370065 ......do Do. Do Columbus County, Unincorporated Areas 370305 ......do Do. Do Fair Bluff, Town of, Columbus County 370067 ......do Do. Do Holden Beach, Town of, Brunswick County 375352 ......do Do. Do Lake Waccamaw, Town of, Columbus County 370069 ......do Do. Do Leland, Town of, Brunswick County 370471 ......do Do. Do Navassa, Town of, Brunswick County 370593 ......do Do. Do Northwest, City of, Brunswick County 370513 ......do Do. Do Oak Island, Town of, Brunswick County 370523 ......do Do. Do Shallotte, Town of, Brunswick County 370388 ......do Do. Do Southport, City of, Brunswick County 370028 ......do Do. Do St. James, Town of, Brunswick County 370530 ......do Do. Do Sunset Beach, Town of, Brunswick County 375359 ......do Do. Do Tabor City, Town of, Columbus County 370070 ......do Do. Do Varnamtown, Town of, Brunswick County 370648 ......do Do. Do Whiteville, City of, Columbus County 370071 ......do Do. Region IV Florida Alachua, City of, Alachua County 120664 June 19, 2006 Suspension Notice Rescinded June 16, 2006. Do Gainesville, City of, Alachua County 125107 ......do Do. Do Micanopy, Town of, Alachua County 120344 ......do Do. Do Newberry, City of, Alachua County 120679 ......do Do. Tennessee Saltillo, Town of, Hardin County 470083 ......do Do. Region VI Arkansas Austin, City of, Lonoke County 050383 ......do Do. Do Cabot, City of, Lonoke County 050309 ......do Do. Do Carlisle, City of, Lonoke County 050312 ......do Do. Do England, City of, Lonoke County 050133 ......do Do. Do Ward, City of, Lonoke County 050372 ......do Do. Region IX California Shasta County, Unincorporated Areas 060358 ......do Do. * -do- =Ditto. ** Designates communities converted from Emergency Phase of participation to the Regular Phase of participation. Code for reading fourth and fifth columns: Emerg.-Emergency; Reg.-Regular; Rein.-Reinstatement; Susp.-Suspension; With.-Withdrawn; NSFHA.-Non Special Flood Hazard Area. (Catalog of Federal Domestic Assistance No. 83.100, “Flood Insurance.”) Dated: August 16, 2006. David I. Maurstad, Director, Mitigation Division, Federal Emergency Management Agency, Department of Homeland Security. [FR Doc. 06-7181 Filed 8-25-06; 8:45 am]
Connectionstraces to 39
Traces to 39 documents
U.S. Code
- Rule making§ 553
- Final regulatory flexibility analysis§ 604
- Findings§ 7701
- Congressional declaration of purpose§ 4321
- Purposes§ 3501
- Transferred§ 450
- Additional inspection services§ 136
- State programs§ 1253
- Congressional findings§ 1201
- Congressional declaration of goals and policy§ 1251
- Congressional findings and declaration of purpose§ 7401
- Other Federal laws§ 1292
- Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts§ 4332
- Public information collection activities; submission to Director; approval and delegation§ 3507
- Definitions§ 601
- EXPEDITED PROCESSING OF REQUESTS FOR JAPANESE IMPERIAL GOVERNMENT RECORDS.§ 804
- Financing§ 4016
- Congressional findings and declaration of purpose§ 4001
register
CFR
- State regulatory program approval.§ 948.10
- Criteria for approval or disapproval of State programs.§ 732.15
- Hydrologic-balance protection.§ 816.41
- Hydrologic-balance protection.§ 817.41
- Subsidence control.§ 817.121
- Definitions.§ 701.5
- Topsoil and subsoil.§ 816.22
- Revegetation: Standards for success.§ 816.116
- Mountaintop removal mining.§ 785.14
- State program amendments.§ 732.17
- Inconsistent and more stringent State laws and regulations.§ 730.11
- State program provisions and amendments not approved.§ 950.12
- Definitions.§ 730.5
- Requirement to release performance bonds.§ 800.40
- Revegetation: General requirements.§ 816.111
- Backfilling and grading: General requirements.§ 816.102
12 references not yet in our index
- 7 CFR 319
- 7 CFR 319.56
- 7 CFR 1
- 7 CFR 372
- 7 CFR 2.22
- 30 CFR 948
- 30 CFR 950
- 30 CFR 700
- 30 CFR 816(a)(2)
- 30 CFR 816.115
- 44 CFR 64
- 44 CFR 10
Citation graph
cites case law
Unknown
Final rule
Cite7 CFR 319
Cite7 CFR 319.56
Cite7 CFR 1
Cites 51 · showing 12Cited by 0 across 0 sources